IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO.675 OF 2007 Bhimrao Dadu Dhumal ...Appellant V/s. Yashoda Shankar Patil & ors. ...Respondents Mr.P.R.Arjunwadkar for the Appellant. Mr.T.S.Ingale for the Respondents. CORAM : ANOOP V. MOHTA,J. DATED : 2nd July, 2008 JUDGEMENT JUDGEMENT JUDGEMENT:- . This Second Appeal is preferred under Section 100 of Code of Civil Procedure being aggrieved by the Judgement and Decree dt. 5-4-2006 passed by Additional District Judge, Islampur in Regular Civil Suit No. 732/1999 by which he confirmed the Judgement and Decree dt. 26-3-1997 passed by Civil Judge Junior Division, Shirala. 2. The description of suit property is as under: Agricultural land bearing Survey No. 73/2 admeasuring H O -47 R assessed at Rs. 4.57 ps. 2 together with well, electric motor, pump set, pipe line, etc. installed therein situated at village Sangaon, Tal. Shirala, Dist. Sangli. 3. Undisputed genealogy is as under:- Bandu = Gangubai (1982) ¦ (D-2) ¦ (14-11-2002) ¦ ¦ ¦ ---------------------------------------------------------- ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ Yashoda Vatsala Sushila Prabhavati Asha Hirabai Ambutai Vidyatai (P-1) (P-2) (P-3) (P-4) (D-3) (D-4) (D-5) (D-6) (Deceased) (Deceased) 12/09/2002 ¦ ¦ ¦ ---------------------------------- ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ Shrikant Dhananjay Amar Alka 4. Suit property is ancestral joint Hindu family property in the hands of deceased Bandu. Defendant No.1 is the purchaser of the property in question. 5. Plaintiffs filed Regular Civil Suit No. 141/87 in the Court of Civil Judge Junior Division, Shirala which is renumbered as Regular Civil Suit No. 279/92 against Defendants for declaration that the sale deed executed by Defendant No. 2 Gangubai in favour of 3 Defendant No.1 Bhimrao be declared as not binding on Plaintiffs for exercising right of pre-emption for partition of movables. 6. Defendant No. 2 Gangubai filed Written-Statement and stated that plaintiffs and other defendants are her daughters and they are given in marriage and staying at their own matrimonial homes. After death of her husband, she had legal necessity so as to maintain herself and for her medical treatment and hence, with consent of all her daughters, she executed registered sale deed of suit property to defendant no.1 Bhimrao for a consideration of Rs. 10,000/- and put him in possession of suit property as owner thereof. 7. Defendant Nos. 1,3,4 and 5 together filed a Written Statement adopting the same stand and also raised legal objections as regards maintainability of the suit on the ground of non-joining of all the properties of the family as well as on the point of valuation of the suit. 8. Plaintiff No. 4A Shrikant deposed on behalf of plaintiffs and examined also PW.2 Ashok son of plaintiff no.1. Defendant No. 1 Bhimrao examined himself and examined his witnesses Ramchandra Patil, Akaram Patil and Bapu Patil. 4 9. The learned Trial Court held that plaintiffs failed to prove that they have right of pre-emption. Plaintiffs proved that sale deed executed by defendant no.2 Gangubai in favour of defendant no.1 Bhimrao is not binding upon them. Plaintiffs are entitled to partition and separate possession. 10. On 26-3-1997, the learned Trial Court by Judgement and Decree dt.26-3-1997 decreed the suit and declared that plaintiff nos. 1 to 4 have together 4/9th share in the suit property and entitled for partition and possession thereof. 11. The defendants preferred Regular Civil Appeal No. 247/1997 before Additional District Judge, Sangli which after transfer to the Court of Additional District Judge, Islampur renumbered as Regular Civil Appeal No. 732/1999. 12. The learned Appellate Court adopted the same observations and gave same findings on points and by Judgement and Decree dt. 5-4-2006 dismissed the appeal. Hence, the second appeal. 13. Both the Courts held that plaintiffs have proved the sale-deed by Defendant No.2 in favour of Defendant 5 No.1 (Appellant) is not binding upon them and therefore, entitled for relief of declaration and for the partition and separate possession. That resulted into confirmation of Judgment and order dated 26th March, 1997 passed by the Trial Court which is reproduced as under:- . "Suit is decreed as follows:- 1. It is hereby declared that the sale deed dated 03/03/1986 is not binding on the share of Plaintiffs to the extent of their 4/9th share in the suit property. 2. The Defendants are directed to hand over separate possession of suit property to the extent of 4/9th share to the Plaintiffs within two months from the date of this order. As per provisions of Section 54 of Code of Civil Procedure partition of land should be effected through Collector, Sangli. 3. Separate inquiry under Order XX Rule 12 C.P.C. can be held for deciding mesne 6 profit of the suit property at the instance of the Plaintiffs. 4. At the time of effecting partition, the portion of house constructed by Defendant No.1 can be allotted to his share. 5. Defendant No.1 should bear expenses of Plaintiffs in respect of this suit and Defendants should bear their own expenses. 6. Preliminary decree be drawn accordingly." 14. The Appellate Court has confirmed the same and also maintained that the plaintiffs Respondents herein have no right to pre-emption of purchasing the share of Defendant No.2. By confirming that there was no express consent obtained by Defendant No.2 Gangubai to alienate the suit property in favour of Defendant No.1 Appellant; that she has sold the land in question for discharging family debt; there was no legal necessity. The sale deed is of the year 1986 whereas the bank loan of Rs.8,000/- was paid on 13/02/1984. The finding so arrived in this background cannot be said to be perverse 7 or bad in law specially when the contesting plaintiffs and defendants except the Appellant i.e. Defendant No.1, who is a purchaser of the property, no one further has challenged the confirming the order passed by the lower Appellate Court in question. Therefore, the judgment and order so passed by the Trial Court as reproduced above, now remained unchallenged at the instance of basic contesting parties. For this reason also, therefore, in the present Second Appeal at the instance of purchaser, therefore, has no substance. There is no perversity. There is no question of law involved. 15. In the result, the Second Appeal is dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]