1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.138 OF 2007 WITH CIVIL APPLICATION NO.1146 OF 2007 Agasti Dattatrya Tupe & Anr. ..Appellants V/s. Jeevan Balasaheb Gaikwad & Ors. ..Respondents Mr.G.S.Godbole with Mr.Pratap Patil for the Appellants/Applicants. Mr.A.P.Kulkarni for the Respondents. CORAM : R.M.SAVANT, J. DATED : AUGUST 11TH, 2008. P.C. This Second Appeal takes exception to the Judgment and decree dated 29th September, 2006 passed by the learned Ad-Hoc District Judge-3, Baramati, by which the decree passed by the Trial Court was modified by the Lower Appellate Court to 2 the extent mentioned in the decree of the Appellate Court. 2. The Appellants herein are the Defendant Nos. 4 and 5 in Regular Civil Suit No.160 of 1995 filed by the Respondent No.1 to 3 herein in claiming partition and separate possession of the property being Gat No.174, 185, 562, 192 and 194 admeasuring 5 acre and 71R situated at Mouji Bori Ayendi and Tamhanwadi, Taluka Daund, District Pune and for a declaration that the Sale Deed Exhibit 85 to 87 dated 27th April, 1995 and August, 1995 are null and void and not binding on the Plaintiffs. The Plaintiffs and the Respondents are related to each other, as per the genealogy shown. It is the case of the Plaintiffs that some of the properties are joint family properties and some of the properties are ancestral properties of the Plaintiffs and the Defendant Nos. 1 to 3. It is the case of the Plaintiffs that there was no legal 3 necessity to sale Gat No.192 , 194 and 562 by the Defendant No.1 Kerba to the Defendant Nos. 4 and 5. It is the case of the Plaintiffs that the Plaintiff Nos. 1 and 2 and the husband of the Plaintiff No.3 was having 1/5th share in the suit properties. It is denied by the Defendants that the said properties are ancestral properties. It is the case of the Defendants that the Defendant No.1 was indebted to the Land Development Bank, Credit Society and the M.S.E.B. and therefore in order to repay the loan and fulfill the financial obligation that the said lands in question namely Gat No.192, 194 and 563 were sold by the said Sale Deeds. The sum and substances of the case of the Defendants is that the said suit properties were sold for legal necessity. 3. The parties went to trial, on the basis of the material that was before the Trial Court, the Trial Court held that the said properties are joint 4 family properties/ancestral properties and that the Plaintiffs and the Defendants had a share in the said properties. In so far as the case of legal necessity which was urged by the Defendants, the Trial Court considered the case of the Defendants on the touchstone of Article 242 and 243 of the Principles of Hindu Law. Wherein the instances of legal necessity have been mentioned, came to a conclusion that the Defendant Nos. 1 to 3 have failed to prove that there was a legal necessity for Kerba to sale the land in question. The Trial Court also took into consideration the recitals in the Sale Deed and the absence of the reasons for the sale therein was also taken into consideration by the Trial Court whilst coming to a conclusion that there was no legal necessity, to sale the said land in question. The Trial Court therefore decreed the suit by holding that the Plaintiffs have 1/5th share in the suit properties and further issued a declaration that the Sale Deed executed by 5 the deceased Kerba Gaikwad in favour of Defendant Nos.4 and 5 dated 27th April, 1995 in respect of Gat No.562 and Gat No.192 and 194 are null and void to the extent of 1/5th share of the Plaintiff, joint 1/5th share of Defendant Nos.6 and 7 and joint 1/5th share of Defendant Nos. 2A, 2B and 2C and Joint 1/5th share of Defendant No.3. 4. Aggrieved by the decree passed by the Trial Court dated 1st March, 2003, Defendant Nos. 4 and 5 filed Regular Civil Appeal No.28 of 2003. The Appellate Court in so far as the issue of legal necessity is concerned, has confirmed the finding of the Trial Court by holding that there was no legal necessity for Kerba i.e. the Defendant No.1 to sale the suit properties in question. However,the Appellate Court modified the decree to the extent mentioned in the order of the Appellate Court. The Appellate Court held that the Sale Deed executed by Defendant No.1 dated 27th April, 1995 6 in favour of Defendant Nos.4 and 5 in respect of the suit lands Gat No.562, 192 and 194 are binding on Defendant Nos. 1,2 and 3 to the extent of their shares. 5. In so far as the Sale Deed dated 27th April, 1995 in respect of Gat No.174 is concerned, the Lower Appellate Court has held that the said Sale Deed is binding on the parties as the same has not been challenged and has therefore attained finality. Both the Courts below therefore have concurrently held that there was no legal necessity on the part of Kerba to sale the suit property in question. 6. It is sought to be contended on behalf of the Appellants that the admission of P.W.1 on behalf of the Plaintiffs that Kerba was indebted to the Land Development Bank and Credit Society has not being taken in to consideration whilst 7 considering the issue of legal necessity. It is therefore submitted by the learned counsel that though there is a concurrent finding against the Appellants above named as regards the issue of legal necessity, since the Courts below have ignored material evidence and have drawn a wrong inference on a proved fact and have also wrongly caste the burden of proving the legal necessity on the Defendant Nos. 4 and 5, the Challenge raised in the Second Appeal involves a substantial question of law. For the said reasons the Appeal deserves consideration. On behalf of the Appellant reliance is also placed on the Judgment of Andhra Pradesh High Court reported in AIR 1967 A.P. Page 264, in support of his submission that once there was an admission by the P.W.1 as regards the indebtedness the burden had shifted to Respondent Nos.1 to 3 to prove that there is no legal necessity. 8 7. Per contra, it is submitted on behalf of Respondent Nos.1 and 3 that the said admission has been taken in to consideration by the Courts below and considering the totality of the evidence of the said P.W.1 both the Courts below have recorded the said finding as regards the legal necessity. It is further contended on behalf of Respondent Nos. 1 to 3 that in the Plaint itself it has been demonstrated that there was absolutely no legal necessity to sale the land in question as the Plaintiffs alongwith their mother have deposited the amount due to the Land Development Bank and the Credit Society. The learned counsel for the Respondent Nos. 1 to 3 draw my attention to the receipts. 8. In my view considering the evidence on record and the appreciation of the same by the Courts below, there is no merit in the said submissions made on behalf of the Appellants. 9 8. One more aspect that is canvassed on behalf of the Respondents is that, it is the contention of Respondent Nos. 1 to 3 that in view of the abatement of the Regular Civil Appeal against Respondent No.2B who has been held to be jointly entitled to 1/5th share of the Defendant Nos. 2A to 2C, the above Appeal is not maintainable. Reliance is placed on the Judgment of this Court reported in 1998(4) of MR.173 in the matter of Sheela Vijay Choudhary and Ors. V/s.Central Bank of India and others. Wherein the Division Bench has held that the Appeal can be entertained if it survives against the surviving Respondents. Though only when it is not possible for the Court to proceed with against the other surving Respondents that the Courts will refuse to proceed further and dismiss it. In view of the fact that the said Defendant 2(B)is held to be jointly entitled to 1/5th share alongwith Defendant 10 Nos. 2A to 2C, according to the learned counsel for the Respondents it would give rise anomalous situation as regards the shares of the surviving Respondents, if the Appeal is allowed to be proceeded with. As regards the aforesaid ground it is contended on behalf of the Appellants, that a written statement was filed on behalf of the said Defendant who had opposed the suit. It is also contended that the mother of the said Defendant No.2(B) was already on record, as also the other Defendants and therefore it cannot be said that the Appeal has abated. Be that is it may since the Appeal is dismissed on the other grounds mentioned earlier in this order. The aforesaid ground of abatement need not be gone into. 9. In my view the challenge raised in the Second Appeal does not involve any substantial question of law. The Appeal is, accordingly, dismissed. 11 10. In view of the dismissal of the Appeal the Civil Application No.1146 of 2007 does not survive and is disposed of as such. 11. Shri.G.S.Godbole, the learned counsel appearing for the Appellants prays for stay of this order as an ad-interim order is operating in favour of the Appellants in the above Appeal. 12. Considering the facts and circumstances of the case, the operation and implementation of this order is stayed for ten weeks from date. [R.M.SAVANT, J.