1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.609 OF 2009 1 Bhagwan Jagannath Dukale, age: 28 years, Occ: Agril., R/o Telwadi, Tq. Paithan, District Aurangabad. 2 Shankar s/o Jagannath Dukale, age: years, Occ: Agril., R/o as above. Appellants Versus 1 Vithal Manaji Dukale, age: 61 years, Occ: Agril., R/o Telwadi, Tq. Paithan, District Aurangabad. 2 Bhanudas s/o Manaji Dukle, age: 71 years, Occ: Agril., R/o as above. 3 Jagannath s/o Kisan Dukle Respondents (Deleted as per Court’s order dated 14.08.2009). Mr.S.L.Kulkarni, advocate for appellants. Mr.B.G.Sagade Patil, advocate for Respondents No.1 & 2. Name of Respondent No.3 is deleted as per Court’s order dated 14.08.2009. CORAM: R.M.BORDE, J. DATE : 25 th September, 2009. P.C.: 1 This is an appeal raising exception to the judgment delivered by first appellate Court on 18.02.2002 in Regular Civil Appeal No.277 of 1997, 2 whereby the first appellate Court, while reversing decree passed by the trial Court, has directed dismissal of the suit presented by plaintiffs. Instant Second Appeal is presented by original plaintiffs no.2 and 3, whereas, plaintiff no.1is added as Respondent No.3 in the appeal. 2 Suit was presented by plaintiffs, being Regular Civil Suit No. 115/86, claiming possession of suit land. Plaintiff No.1’s father Kisan had a real brother by name Manaji, who was father of defendants. During the life time of Kisan and Manaji, partition was effected in respect of agricultural lands and suit land admeasuring 4 acres and 22 gunthas out of G.No.44 had fallen to the share of Kisan, father of plaintiff no.1. Kisan died on 20.02.1984 leaving behind plaintiff no.1 as his only son. Plaintiffs no.2 and 3 are minor sons of plaintiff no.1. According to plaintiffs, till 1982, father of plaintiff no.1 Kisan was in possession of suit lands. However, defendants, in connivance with the Talathi, got mutation entries sanctioned in the year 1982 and have recorded their names in respect of land allotted to Kisan, father of plaintiff no. 1. According to plaintiffs, defendants ousted plaintiffs of the possession and they have enforced their possession over the suit land. Plaintiffs, as such, claimed recovery of possession of suit property. 3 Defendants resisted the suit by filing written statement. According to them, sister of plaintiff no.1 Kamalabai was to be married and in order to meet marriage expenses, father of plaintiff no.1 shown desire to sell the land to Manaji, father of defendants. Accordingly, there was exchange of land G.No.5 and additional consideration of Rs.15000/- was handed over to father of plaintiff no.1 and exchange transaction was completed. As father of plaintiff no.1 and father of defendants, being real brothers, in order to save expenses of execution of document, registered instrument was not 3 got executed. However, Kisan, father of plaintiff no.1 executed a receipt as token of receipt of amount of Rs.15,000/-. It is the contention of defendants that in view of exchange, they are in possession of landed property. 4 The trial Court, on consideration of evidence led by the parties, came to the conclusion that in the absence of registered document, defence of defendants cannot be relied upon. The trial Court, thus, took a view that the plaintiffs have established their case and as such, granted decree in their favour. 5 Defendants preferred an appeal, being Regular Civil Appeal No.277 of 1997, which came to be heard and disposed of by Additional District Judge, Aurangabad, who was pleased to allow the same by his judgment and decree dated 18.02.2002. The first appellate Court has considered the aspect of execution of sale deed by plaintiff no.1 in favour of defendants in respect of suit land. Although exchange effected between father of plaintiff no.1 and father of defendants was not recorded and transaction was not registered as required under law, however, the defect occurred in enforcing the transaction has been cured by executing sale deed by plaintiff no.1 in favour of defendants. Thus, defendants contend that they are in possession of the suit land on the basis of sale effected by plaintiff no.1 and further they hold title to the suit property. This aspect is taken into account by the first appellate Court. It has also been observed by the first appellate Court that defendants have duly proved the sale deed. Considering these aspects, the first appellate Court was pleased to reverse the judgment and decree passed by the trial Court. 6 I have perused the judgment delivered by first appellate Court. 4 Admittedly, plaintiff no.1 has executed sale deed of the disputed land in favour of defendants by accepting consideration of Rs.15,000/- on 28.01.1987. The registered sale deed is duly proved by defendants. Appellants, however, are not prevented from raising challenge to the alienation made by their father but such step was not taken by them by seeking amendment to the plaint. This also could not have been possible for them as their father had joined them in presenting suit against defendants. In these circumstances, in the absence of any challenge to the sale transaction effected by plaintiff no. 1 in favour of defendants, the view taken by first appellate Court cannot be said to be irrational or illegal. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa60909