1 SA 91 of 2011 with FA 2619 of 2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.91 OF 2010 WITH FIRST APPEAL NO.2619 OF 2005 Leela Vasant Shewale (since deceased through LRs) Sudhir Vasant Shewale and Ors. ...Appellants Vs. Alaknanda Shivajirao Adhav and Ors. ...Respondents ----- Mr.Uday P. Warunjikar for Appellants Mr. P.S. Dani for Respondent Nos.1 to 3 ----- CORAM: V.M. KANADE J. DATED: 20th April, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellants and the Respondents. 2. The Appellants are the original Plaintiffs and the Respondents are the Original Defendants (for the sake of convenience, the parties shall be referred to as “the Plaintiffs and the Defendants”). The Plaintiffs filed the suit for simplicitor injunction seeking possession of the suit premises admeasuring about 250 sq.ft. restraining the Defendants from obstructing their possession. The 2 SA 91 of 2011 with FA 2619 of 2005 Respondents filed a counter claim and contended that the Plaintiffs are the gratuitous licensees. The Defendants also filed the suit being Suit No. 1737 of 2004. Said suit was filed for Letters of Administration of a Will of deceased Laxmibai. In view of the objections taken by the Plaintiffs herein, the said application for letters of administration was converted into the suit. The Will which was executed by deceased Laxmibai who was the grand-mother of both the parties was challenged. By the said Will, deceased Laxmibai did not grant any share to the Plaintiffs-Appellants herein. The suit No. 1737 of 2004 was decreed and it was held that the Will was proved and probate was granted. An appeal which was filed against this order was also dismissed. The order passed by the Trial Court and the Lower Appellate Court was challenged by the Appellants herein, who were the Defendants in that suit by filing the Second Appeal No. 103 of 2010. The Second Appeal was also dismissed by this Court by the judgment and order dated 4th February, 2011. The Plaintiffs being aggrieved by the judgment and order passed in their suit, have preferred this Second Appeal. Since the suit was filed for simplicitor injunction, the Plaintiffs could succeed in the suit only if they are in possession and they had title over the suit property. Since this question of title is already 3 SA 91 of 2011 with FA 2619 of 2005 decided in the suit filed by the Defendants being suit No. 1737 of 2004, the said finding will be binding on the Plaintiffs herein. Even otherwise, in my view, no substantial question of law is raised in this Second Appeal since the outcome of this Second Appeal would be depended on the decision in Second Appeal No. 103 of 2010. The said Second Appeal having been dismissed as a consequence , it will not be possible to entertain this Second Appeal. Suggestion was made by this Court after dismissal of the First Appeal to settle the dispute. However, despite best efforts being taken by the learned counsel by either sides, the parties could not settle the dispute and arrive at any amicable solution to resolve the dispute. Hence, Second Appeal is dismissed. 3. So far as the First Appeal is concerned, the First Appeal was filed by the Plaintiffs herein seeking partition and separate possession of the property which initially standing in the name of Late Smt. Laxmibai. Since the Will which was executed by deceased Laxmibai was proved by the Defendants, the Plaintiffs would not be entitled to seek relief for partition and separate possession of the property. 4. Hence, First Appeal also will have to be dismissed since the Trial Court has taken into consideration the 4 SA 91 of 2011 with FA 2619 of 2005 execution of the Will of Laxmibai dated 22nd June, 1973 and it has held that the said Will is proved. In fact, a common judgment was delivered by the Trial Court in respect of three suits and, hence, in view of dismissal of the Second Appeal No. 103 of 2010, the First Appeal also does not survive for the reasons given in the said Second Appeal. First Appeal also dismissed and disposed of. Rule is discharged. 5. At this stage, the learned counsel for the Appellants submits that some time may be granted to the Appellants and the decree passed by the Trial Court may be stayed in order to enable the Appellants to approach the Apex Court. 6. Taking into consideration the fact that the Appellants are in possession of the suit premises, and are the cousins of the Respondents, twelve weeks’ time is granted to the Appellants. Accordingly, the decree passed by the Trial Court for possession is stayed for a period of twelve weeks on the condition that the Appellants herein give an undertaking to this Court that they shall not create any third party rights. The said undertaking in an usual form and all the persons who are residing in the said premises shall file a joint 5 SA 91 of 2011 with FA 2619 of 2005 undertaking to that effect in the usual form within four weeks. If the undertaking is not filed, stay granted by this Court shall stand vacated without further reference to this Court. (V.M. KANADE J.)