1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 237/2002 (Abdul Hamid s/o Shaikh Munna since deceased through his Legal Heirs vs. Shaikh Kasam s/o Sk. Jaffar and others) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. Mrs. Prabhu, Adv.for appellants Mr. A.S.jaiswal, Adv.for Respondent No.2 CORAM: Smt. Vasanti A. Naik , J. DATED: 27th AUGUST, 2007. *** 1. Heard learned counsel for the parties. 2. Appellant is the original defendant no.5. The suit was filed by the plaintiff against defendants for partition and separate possession of 2/3rd share in the suit property. Plaintiff also sought some ancillary reliefs of permanent and mandatory injunction. It was the case of the plaintiff that the defendants 1 and 2 had agreed to sell the suit property to the plaintiff. Since defendants 1 and 2 did not perform their part of the contract, a suit for specific performance of the contract was filed by the plaintiff against Defendant Nos. 1 and 2. A plea was raised by the defendant in that suit that the defendant nos. 1 and 2 were not entitled to sell the suit property to the plaintiff as the defendant nos.3 and 4, the sisters of the 2 defendant nos.1 and 2, had not joined in executing the agreement of sell. The suit for specific performance of contract, as filed by the plaintiff, was however, decreed to the extent of 2/3rd share of the defendants 1 and 2 in the suit property. The First Appellate Court directed Defendant Nos. 1 and 2 to execute the sale deed in respect of their 2/3rd share in the suit property. Since defendants 1 and 2 failed to execute the sale deed, the sale deed was executed in favour of the plaintiff through the Court and the plaintiff became the owner of 2/3rd share of the Defendant Nos. 1 and 2 in the suit property. After the sale deed was got executed in favour of the plaintiff through the Court the plaintiff filed the present suit for partition and separate possession of his 2/3rd share. Defendant no.5 had purchased the suit property prior to the execution of the sale deed in favour of the plaintiff through the Court, but after the agreement of sale was executed by defendant nos. 1 and 2 in favour of the plaintiff. In the instant suit also, it was pleaded by defendants that the suit was bad for non-joinder of necessary parties as the property was owned by the other sisters of defendants 1 and 2 who were not joined as parties to this suit. The defendants, therefore, pleaded that the sale deed to the extent of 2/3rd share in the suit property could not have been executed in favour of the plaintiff. The defendants sought the dismissal of the suit filed by the plaintiff. 3. The trial Court considered the evidence tendered by the parties on record and decreed the suit filed by the plaintiff. It was held by the trial Court that the plaintiff proved that he had 2/3rd share in the suit property. The Court further held that the suit was not bad for join-joinder of necessary parties. The findings recorded by the trial Court were upheld by 3 the first Appellate Court in an appeal filed by the present appellant/ defendant no.5. The judgment passed by the trial as well as Appellate Court are challenged in this Second Appeal. 4. The only ground canvassed on behalf of the appellant in this Second Appeal is that the suit filed by the plaintiff was bad for non-joinder of necessary parties. According to learned counsel for appellant, the defendant nos.1 and 2 were the brother and there were other sisters of defendant nos.1 and 2 who were not joined as party defendants though the plaintiff had joined only 2 sisters of the defendants 1 and 2 as parties to the Civil Suit. It was submitted on behalf of the appellant that the suit filed by the plaintiff for partition and separate possession of his 2/3rd share was liable to be dismissed in the absence of joinder of necessary parties. 5. Learned counsel for respondents, on the other hand, supported the judgments passed by both the Courts and submitted that a vague plea was raised on behalf of defendants 1 to 5 by stating that there were other sisters of defendants 1 and 2 who were not joined as parties to the suit. It was submitted on behalf of respondents that the defendants 1 to 5 had not specifically pleaded as to who were the other sisters of defendants 1 and 2 who were not joined as parties to the litigation. It was then submitted on behalf of the respondents that Courts rightly considered the fact that even the defendant no.5 had purchased the suit property from the defendants 1 to 4 and this clearly pointed out that 4 defendants 1 to 4 were the owners of the property and the suit could not have been thrown out for non-joinder of necessary parties. 6. I have perused the judgments passed by the both the Courts and have also perused the pleadings o the defendants. It is not in dispute that the defendants 1 to 5 have not challenged the execution of the sale deed to the extent of 2/3rd share of the defendants 1 and 2 in the suit property in favour of the plaintiff through the Court. Apart from that, defendants had merely pleaded in the written statement that the suit was bad for non-joinder of necessary parties, without specifically mentioning the names of the parties who ought to have been joined to the suit for partition and separate possession. The Courts, therefore, considered the ratio laid down in the decision of the Supreme Court to hold that it was necessary for the defendants to have specifically pleaded in their written statement as to who were other coowners of the suit property who ought to have been joined as party defendants. The Courts further gave due weightage to the fact that defendant no.5 had also purchased the suit property only from defendant nos. 1 to 4. This clearly showed that the property was owned and possessed by defendant nos. 1 to 4. The submission made on behalf of the appellant/defendant no.5 purchaser of the property is liable to be rejected as the defendant no. 5 had himself purchased the suit property from defendant nos.1 to 4 only. Also, neither the so called sisters of the defendant nos. 1 and 2 had entered the witness box nor the mother of defendants 1 to 4 had entered the same to point out that they were the owners of the suit 5 property and had a share in it and the suit filed by the plaintiff was not maintainable. For all the reasons aforesaid, I find no reason to interfere with the findings recorded by both the Courts as the findings are pure findings of facts which are based on proper appreciation of pleadings and the material evidence on record. 7. Since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed, with no order as to costs. JUDGE sahare