1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL ST. NO. 328 OF 2004 Vaijnath s/o Manikrao Yadav & another .. APPELLANT VERSUS Manikrao s/o Ratanrao Yadav and others .. RESPONDENTS Shri A.G. Dalal, Advocate h/f Shri V.D. Salunke, Advocate for appellant. Shri A.V.Rakh, Advocate h/f Shri S.V. Mundhe, Advocate for respondent nos. 2, 3 and 5. Respondent no. 4 deleted as per court order dt. 7-8-2009. Respondent no. 1 served. ===== CORAM : R. M. BORDE, J. DATE : 16 th September 2009 PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted Regular Civil Suit no. 217/1992 claiming possession of the suit property or in the alternative partition and possession of their share in the suit property. Defendant no. 1 is the father of plaintiff nos. 1 and 2 / appellants herein whereas defendant nos. 2 to 6 are the purchasers of the property from defendant no. 1. According to the plaintiffs, their father was addicted to bad vices and in order to satisfy his bad vices he alienated the 2 suit property without there being any legal necessity. Plaintiffs therefore claim possession of the property or in the alternative their 2/3 rd share in the ancestral property. 3 Defendant no. 1 did not appear. Defendant nos. 2 to 6, purchasers of the property, appeared and presented written statement and controverted the contentions raised by plaintiffs. According to defendants, property has been alienated by defendant no. 1 for meeting the family necessity. Defendant no. 1 needed money for meeting expenses of marriage of his daughter. It is contended that he was also indebted to the village co- operative society. Defendants further contended that defendant no. 1 also needed funds for meeting the expenses of education of his sons i.e. plaintiffs. According to the defendants, the suit is not tenable on account of failure of the plaintiffs to include all the family properties and impeaching alienation made by father on earlier occasion. 4 After considering the contentions raised by rival parties and on receiving evidence led, trial court came to the conclusion that the plaintiffs have failed to substantiate their case and as such dismissed the suit by judgment and decree passed on 9-10-2001. Plaintiffs presented appeal 3 raising exception to the judgment passed by the trial court in Regular Civil Appeal no. 249/2001 which came to be heard and disposed of by the third Additional District Judge, Parbhani who was pleased to dismiss the same on 1-8-2003. 5 I have perused the judgments recorded by both the courts below. The courts below have recorded finding that the plaintiffs have failed to substantiate their contention that their father was addicted to bad vices. So far as the legal necessity is concerned, defendants have led evidence and have proved that defendant no. 1 was short of funds. Funds received by him by alienating the property have been utilised for meeting the expenses of marriage of his daughter as well as for continuing the education of his sons. It has also been brought on record that defendant was indebted to village co-operative society and he owed Rs.10,000/- to the society. Thus, defendants have brought on record evidence to demonstrate that defendant no. 1 was in need of funds for meeting the family necessities. It is not necessary for the defendants to prove application of the funds. Defendants have placed on record material to arrive at conclusion that there was need for making alienation. Considering these aspects, it cannot be said that the finding recorded by the courts below on the basis of 4 appreciation of evidence is erroneous. The courts below have also recorded finding that the plaintiff has not included all the family properties in the suit although they have claimed partition of the property. I do not find that the reasons recorded by the courts below are erroneous or call for any interference in exercise of jurisdiction under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration of the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sast328.04.odt 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 3404 OF 2005 IN SECOND APPEAL ST. NO. 328 OF 2004 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 16 th September 2009. 1 This is an application seeking condonation of delay of 47 days occurred in presenting the second appeal. 2 Heard. For the reasons stated in the application, application deserves to be allowed and the same is accordingly allowed. Delay of 47 days occurred in presenting the second appeal stands condoned. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast328.04.odt 6 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 11433 OF 2006 IN SECOND APPEAL ST. NO. 328 OF 2004 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 16 th September, 2009. 1 This is an application for bringing on record legal heirs of deceased respondent no. 6 as well as for condonation of delay occurred in tendering application for bringing on record legal representatives of concerned respondent. 2 Heard. For the reasons stated in the application, application deserves to be allowed. delay occurred in presenting application for bringing on record legal representatives of deceased respondent no. 6 stands condoned. Legal representatives of deceased respondent no. 6 are permitted to be brought on record. Record be amended accordingly. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast328.04.odt 7