1 SA 176.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 176 OF 2011 Sheikh Mohd. Hussain Ekaram Patel .. Appellant Versus 1. Ruksana Shafioddin Sheikh and anr. .. Respondents Shri N. C. Garud, Advocate for the Appellant. Shri R. R. Karpe, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH APRIL, 2011. PER COURT : . This is an appeal by the original defendant No. 2. The original plaintiff had filed a suit for possession, declaration, perpetual injunction and compensation. The Trial Court partly decreed the suit only to the extent of possession and negatived the relief to the extent of declaration, perpetual injunction and compensation. The defendant No. 2 preferred an appeal. The appellate Court also dismissed the appeal. Aggrieved thereby the defendant No. 2 has filed the present second appeal. 2 SA 176.11 2. Shri Garud, the learned counsel submits that the Courts below have failed to consider that the defendant No. 1 had already transferred ownership in favour of the present appellant by registered sale deed dated 11.03.1997. As such, after 11.03.1997 the defendant No. 1 did not have the right, title or interest to sale the said property to the defendant No. 2 vide sale deed dated 01.10.1997. The Trial Court had negatived the relief of declaration. Even otherwise the plaintiff would not get any right on the basis of sale deed dated 01.10.1997. According to the learned counsel the Courts have been swayed away more by judgment and decree passed in R.C.S. No. 122/1999. The finding in the said suit would not be relevant to the decision of the present suit. The learned counsel further submits that the appellant has filed an appeal against the said judgment along with an application for condonation of delay and the same is subjudice. As such, it will not be said that judgment in R.C.S. No. 122/1999 has attained finality. The learned counsel further submits that the Courts have not properly appreciated the evidence on record in its correct perspective. 3. Shri Karpe, the learned counsel for the original plaintiff submits that no error can be found in judgment passed by the 3 SA 176.11 Courts below. The R.C.S. No. 120/1999 was filed by the present appellant against the present respondent and sought declaration that the sale deed executed by the defendant No. 1 in favour of the defendant No. 2 therein dated 01.10.1997 is illegal, null and void. The said suit was dismissed on merits. For ten years no appeal was filed and now after the decision of the Trial Court on merits that too after long slumber of ten years the appeal is shown to have been filed which is not yet registered. 3. With the assistance of learned counsel I have gone through the judgments. The validity of sale deed by defendant No. 1 in favour of present plaintiff was already decided in R.C.S. No. 122/1999, wherein present defendant No. 2 himself was plaintiff and sought a positive declaration to that effect. After recording of evidence the Court of competent juridiction held the sale deed executed by the present defendant No. 1 in favour of present plaintiff dated 01.10.1997 to be legal and valid. The present defendant No. 2 did not challenge the said judgment. The said R.C.S. No. 122/1999 was dismissed on 25.08.2000. Thereafter, the present suit was filed by the plaintiff in 2008 which came to be decreed on 25.11.2009 and even till that date no appeal was filed against the judgment and decree dated 25.08.2000 in R.C.S. 4 SA 176.11 No. 122/1999. In view of the fact that the sale deed of present plaintiff was held to be legal and valid, the plaintiff was entitled for the decree as passed by the Courts below. 4. There is no error committed by the Courts below while passing the impugned judgment and decree. The second appeal does not involve any substantial question of law is dismissed. No costs. 5. Shri Garud the learned counsel submits that the appeal filed against the decree in R.C.S. No. 122/1999 is still pending. The said Court would decide the application for condonation of delay on its own merits and whatever pleas are available to the appellant in law would be open for him, if otherwise permissible in law. [ S. V. GANGAPURWALA, J. ] bsb/April 11