1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 1084 OF 2005 Parvatabai w/o Pandharinath Joshi, deceased L. Rs. Vijay Dattatraya Joshi and anr. ...Appellants (original defendants) VERSUS Vasant Damodhar Joshi and others ...Respondents (original plaintiffs) ..... Shri V.T. Choudhari, advocate for the appellants Shri M.C. Syed, advocate for respondent no.1 Appeal abates against respondent nos. 2 and 4 Respondent no. 3 served absent. ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 2 nd February, 2011 PER COURT : 1 Heard Shri V.T. Choudhari, learned counsel for the appellants and Shri M.C. Syed, learned counsel for respondent no.1. Respondent no. 3 though served is absent. Appeal abated against respondent nos. 2 and 4. 2 2 This is a Second Appeal preferred by the appellants (original defendants) challenging the judgment and order passed by the learned Additional District Judge, Amalner on 21.2.2005 in Regular Civil Appeal No. 4 of 1998, thereby dismissing the said appeal filed by the appellant herein, and confirming the judgment and decree dated 17.12.1997 passed by the Civil Judge, Junior Division, Chopda in Regular Civil Suit No. 93 of 1990. The parties are herein after referred as per their original status as ‘the plaintiffs’ and ‘the defendants’. 3 The plaintiffs filed the suit for declaration that mutation entry nos. 278 and 364 regarding ownership of the land Gat No. 330, admeasuring 53 Ares of village Devgaon, Taluka Chopda i.e. the suit land recorded in the name of deceased Pandharinath i.e. the husband of defendant no.1 are illegal and also for declaration that the plaintiffs are the owners of the suit land and for possession of the suit land from the defendants. The said suit was partly decreed by the learned Trial Judge and it was declared that the plaintiffs are the owners of the suit land i.e. Gat No. 330 admeasuring 53 Ares of village Devgaon, Taluka Chopada, and defendant no.2 was directed to deliver the possession of the suit land i.e. Gat No. 330, 3 admeasuring 53 Ares of village Devgaon, Taluka Chopada to the plaintiffs and to pay the future mesne profits, but the prayer in respect of declaration that the mutation entry nos. 278 and 364 be declared as illegal, was refused. 4 Being aggrieved and dissatisfied by the said judgment, the defendants preferred Regular Civil Appeal No. 4 of 1998 challenging the judgment and decree rendered by the trial Court. However, the said appeal also came to be dismissed by the learned Additional District Judge, Amalner on 21.2.2005. Hence, feeling aggrieved by both the said judgments of the lower Courts, the defendants have preferred the present Second Appeal assailing the same. 5 Shri V.T. Choudhari, learned counsel appearing for the defendants/appellants herein canvassed that Pandharinath i.e. husband of Parvatabai was declared as protected tenant on the suit land and appellant no.1 sold the suit land to Abhiman (original defendant no.2) by way of sale deed dated 9.7.1990, but there is no prayer to set aside the said sale deed dated 9.7.1990 in the suit filed by the plaintiffs and in spite of that the suit came to be decreed in favour of the plaintiffs, thereby declaring the plaintiffs as owners of 4 the suit land i.e. Gat No. 330, admeasuring 53 Ares of village Devgaon, Taluka Chopada, which was illegal and which can be formulated as a substantial question of law. 6 However, the learned counsel for the respondent invited my attention to the judgment rendered by the Trial Court, more particularly para no. 21 thereof, wherein the said contention of appellants has been discussed, and it is observed that the plaintiffs are not the parties to the said sale deed executed by defendant no.1 in favour of defendant no.3, as well as the said sale deed is not binding on the plaintiffs, and therefore, the plaintiffs are not required to get the said sale deed cancelled, as canvassed by the learned counsel for the defendants, and the said reasoning given by the learned Trial Court in respect of the said contention raised by the learned counsel for the appellants herein cannot be faulted with. 7 Moreover, learned counsel for the respondent invited my attention to para no.13 of the judgment of the First Appellate Court, wherein the said aspect has been dealt with and it is observed that it is strange that defendant no.1 has not uttered a single word that the deceased Pandharinath was in possession of the suit land as a protected tenant, and the defendants have not adduced evidence on 5 the above point, and no issue on the said point of tenancy right of deceased Pandharinath has been framed, as well as no ground in the appeal in that respect was raised that Pandharinath was entitled to maintain possession of the suit land as a protected tenant, and the said argument was canvassed, for the first time in appeal, and therefore, same cannot be considered. 8 Apparently, there is no flaw in the said reasoning given by the First Appellate Court in respect of the said contention raised by the defendants. 9 In the circumstances, no substantial question of law could be formulated and present Second Appeal bears no substance and same is devoid of any merits, and therefore, same stands dismissed. 10 R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE, J.) dbm/sa1084.05