(1) SA. 739.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 739 OF 2009 Avinash Hari Gaikwad .. Appellant VERSUS Hari Yashwanta Gaikwad since deceased through LRs. and others .. Respondents WITH CIVIL APPLICATION NO. 10673 OF 2009 IN SECOND APPEAL NO. 739 OF 2009 Avinash Hari Gaikwad .. Applicant VERSUS Hari Yeshwanta Gaikwad since deceased through LRs. and others .. Respondents Mr. S.N. Gaikwad, Advocate h/f. Mr. N.V. Gaware, Advocate for the appellant/applicant Mr. R.K. Temkar, Advocate for the respondent nos. 2C and 2D. CORAM : A.V. NIRGUDE, J. DATED : 12TH MARCH, 2010 ORAL ORDER:- 1] This Second Appeal is filed against the concurrent findings of the Courts below that the suit of the appellant (plaintiff) was collusive with his father-respondent no.1. 2] The facts leading to this litigation are as under:- . The appellant and his father formed a joint (2) SA. 739.2009 Hindu family which owns land gat no. 189 admeasuring 1 H 10 R. In 1981. The respondent no.1 executed an agreement for sale of this land to the extent of 41R in favour of the respondent no.2 when the appellant was only 11 years old boy. The respondent no.1 however, did not execute the sale deed which forced the respondent no.2 to file a suit for specific performance (Regular Civil Suit No. 82 of 1982). The respondent no.1 contested the suit, but in 1992, after 10 years the suit was decreed. The respondent no.1 then filed the Appeal against this judgment and decree. It was pending till the impugned judgment of the first appeal Court was passed. In 1989, the appellant became major and in 1992 he filed this suit saying that his father-respondent no.1 had agreed to sell the joint family property for satiating his immoral desires. He therefore, claimed that the decree passed in Suit no. 82 of 1982 would not bind him and he also sought injunction to prevent the respondent no.2's entry in the land. In other words, he sought to nullify the benefit of the decree passed in suit no. 82 of 1982. 3] Two questions arose between the parties: (i) Whether the transaction of 1981 was entered into for legal necessity and (ii) Whether the suit of the appellant was collusive, filed in order to avoid the effect of the decree in Suit no. 82 of 1982 passed against the respondent no.1 his father. On both (3) SA. 739.2009 these questions of facts, the Courts below concurrently held against the appellant. 4] The learned Advocate appearing for the appellant contended that the respondent no.2 did not prove his case that the transaction of 1982 was for legal necessity. He pointed out that it was enough for the appellant to say that the transaction was not for legal necessity. He said and rightly so, the burden of proof that the transaction was for legal necessity was on the respondent no.2-the purchaser. He also tried to show that in order to discharge this burden, it was necessary for the respondent no.2 to enter the witness box but he avoided to do so. He therefore, said that the finding of the Courts below on the question of legal necessity was perverse as it was recorded without any basis. 5] Having gone through the judgments of the Courts below, I find that the finding about the legal necessity was recorded in favour of the respondent no.2 on the basis of the evidence given by the appellant-plaintiff himself. The reasons for coming to such conclusion are quite cogent and so, the argument of the learned Advocate appearing for the appellant, cannot be accepted. There appears no substantial question of law arising in this appeal. The Appeal should fail. (4) SA. 739.2009 6] The Second Appeal stands dismissed. Consequently, Civil Application no. 10673 of 2009, seeking stay also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp/