1 SA187/1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 187 OF 1991 1 Shrikant s/o Govindrao Joshi (Sangvikar), Age 39 years, Occupation Nil, Resident of Sangvi (Kati), Taluka Tuljapur. Appellants 2 Usha w/o B. Pathak, Age 34 years, Occupation Household, Resident of Ward No. 7 Gandhikhana Chowk Chakre Wada, Solapur 3 Ramchandra s/o Govindrao Sangvikar, Age 42 years, Occupation Nil, Resident of Sangvi, Taluka Tuljapur. 4 Madhavi Narayan Godase (died) her proposed L.Rs. 4-A Dananjay Narayan Godase, Age 32 years, Occupation Service, Resident of At Post Lonanda, Taluka Khandala, District Satara 4-B Geeta Manohar Ghodake, Age 26 years, Ocupation Household, Resident of 20-B, Sayadhri, Santosh Nagar, Katkai Pune 4-C Priti Narayan Godase, Age 22 years, Occupation Household, Resident of 20-B, Sayadhri, Santosh Nagar, Katkai Pune 5 Sharda Prasadrao Chahalag, Age 25 years, Occupation Household, Resident of Sangvi, Taluka Tuljapur V E R S U S 1 Manik s/o Sadashiv Pawar (died) Respondents 1-A Tanubai w/o Manikrao Pawar 1-B Bharat s/o Manikrao Pawar 1-C Netaji s/o Manikrao Pawar, 1-D Venkat s/o Manikrao Pawar, 1-E Suman Wadne d/o Manikrao Pawar, 1-F Mangal Naavgire d/o Manikrao Pawar, 1-G Sudhakar s/o Manik Pawar, Respondent Nos. 1-A to 1-G are major and resident of Malumbra, Tuljapur, District Osmanabad 2 Ramabai w/o Govind Joshi, Since died appeal abated against her vide order below Exh.1 Dt. 15.3.1985 2 SA187/1991 Shri S.S. Nirkhee, Advocate for the appellants Shri S.S. Bora, Advocate for respondent Nos. 1A to 1G CORAM : A.V. NIRGUDE, J. DATED : 13th September, 2011 ORAL JUDGMENT : 1. At the time of admission of appeal in 1991, several grounds, mentioned in the appeal-memo, were considered to be giving rise to the substantial questions of law. However, after hearing the submissions of the learned counsel for the parties, I found following substantial question of law arising in this appeal : Whether the learned Judge of the first appeal Court did not frame necessary points for consideration? If the answer is in affirmative, whether it would affect the outcome of the appeal? 2. The facts leading to this litigation are as under : The original respondent / plaintiff Manik filed this suit against one Ramabai. It was his case that he had purchased the suit property, an agricultural land from Ramabai in 1972 for Rs.5,000/- through a registered sale-deed. He said that despite of his settled possession, Ramabai was trying to disturb his possession. So, he filed suit for perpetual injunction against Ramabai. Ramabai opposed the suit saying that she never put the original plaintiff Manik in possession of the suit land, because the sale-deed which she executed in his favour was a sham one. She said, it was never intended to be acted upon. She added that the sale-deed was executed for securing loan which had taken from Manik. She then asserted that during pendency of the suit she was dispossessed. During pendency of the suit, Ramabai’s children were also added as defendants, but they did not file separate written statement. 3 SA187/1991 3. The learned Judge of the trial Court held after recording evidence that the case of Ramabai was completely unbelievable. He held that the sale-deed was not sham and that Manik was put in possession of the suit land pursuant to the sale-deed of 1972. The suit was therefore decreed. The case of mortgage etc was also rejected. 4. Ramabai’s children then filed appeal against the said Judgment and decree making Ramabai as respondent No. 2. Unfortunately, during pendency of the appeal Ramabai died. But, nonetheless, it is clear that the appellants could pursue the appeal and their right to sue survived. On the other hand, they admittedly were the legal representatives of Ramabai. Unfortunately again the learned Judge of the first appeal Court failed to appreciate the case correctly. The questions that arose for his consideration were; first, whether Ramabai and her children were in possession of the suit land on the date of filing of the suit?, second, whether the respondent/plaintiff dispossessed them during pendency of the suit? Second whether the sale-deed was nominal and was not intended to be acted upon ? etc. The learned Judge of the first appeal Court however did not pay any attention to these important aspects of the case, but went on making observations which are really of no consequence. He somehow dismissed the appeal and therefore the second appeal came before this Court. 5. Indeed, the necessary points for consideration were not framed by the learned Judge of the first appeal Court. The learned counsel appearing for the appellants earnestly requested for remand of the case back to the first appeal Court so that the necessary points for consideration could be argued and decided on merits. I am afraid, this request cannot be accepted. The Courts below 4 SA187/1991 certainly held that the respondent/plaintiff Manik was in possession on the date of filing of the suit. Assuming that the present appellants and their mother Ramabai wanted to contend that the sale-deed was sham and the real nature of the transaction was mortgage etc., they could have taken such a plea in the written statement and they ought to have filed a counter- claim for redemption of such mortgage. In absence of such meaningful defence and counter-claim, there is practically no purpose for remand of the case back to the lower Court. Such an exercise would not make any difference to the position of the present appellants. On the other hand, the decree which is only of perpetual injunction would cause no harm to them if they can invent some other but lawful method for getting possession of the suit-land back. The appeal should therefore fail. Second Appeal stands dismissed. In view of dismissal of the second appeal, all pending civil applications would not survive and stand disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/187/91/13/9/11ok