( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 172 OF 1993 Yamunabai w/o Sopan Arbale, R/o Bori, Taluka and District Latur. APPELLANT VERSUS 1. Sayyad Abdul Rab s/o Sayyad Mohiuddin, R/o Bori, Taluka and Dist. Latur. 2. Sopan Nivariti Arbale, R/o as above. RESPONDENTS ..... Mr. S.S. Bora, advocate for the appellant. Mrs.C.S. Deshmukh, advocate holding for Mr. S.P. Deshmukh, advocate for the respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th November, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned 3rd Additional District Judge, Latur, in an appeal (R.C.A. No. 109/1988) whereby judgement rendered by the trial Court in suit (R.C.S. No. 33/1978) ( 2 ) was set aside and the suit filed by the appellant, who is original plaintiff, came to be dismissed. 2. The dispute lies in a narrow compass. The appellant filed suit for declaration of her ownership and recovery of possession in respect of an agricultural land bearing block No. 187, to the extent of 1 acre 29 gunthas situated at village Bori under Tahsil and District Latur. The appellant is wife of respondent No. 2 (original defendant No. 2). The respondent No. 1 (original defendant No. 1) is the purchaser of the suit land from the respondent No. 2. There is no dispute about the fact that the appellant had filed proceedings vide Misc. Application No. 34/1996 seeking recovery of maintenance allowance wherein besides her husband i.e. the respondent No.2 herein, the respondent No. 1 was a party. The said proceedings were withdrawn on 30th July, 1976. It has come on record that the respondent No. 2 had agreed to alienate the suit land in favour of the respondent No. 1. The case of the respondent No. 1 was that he was inducted in possession of the suit land on 10-05-1976 in pursuance to the agreement of sale. He ( 3 ) alleged that the respondent No. 2 agreed to alienate the suit land for consideration of Rs. 7000/-. He had paid earnest money of Rs. 4500/- on the day of agreement itself and the remaining amount of consideration was paid on 05-06-1976. The respondent No. 2 executed a registered sale-deed in respect of the suit land in favour of the respondent No. 1 on 14-10-1977. 3. The only substantial question of law raised in this second appeal is : “Whether the respondent No. 2 was competent to alienate the suit land in favour of the respondent No. 1 as on the date of the execution of the sale-deed, because of intervening assignment of the ownership in favour of the plaintiff vide decree in maintenance suit (R.C.S. No. 88 of 1976) and that the respondent No. 1 could not have any right to claim ownership on basis of his agreement of sale which could not be given precedence over the charge created under the maintenance decree for enjoyment of the suit land by the plaintiff ?” Heard learned counsel for the parties. ( 4 ) 4. At the outset, it is worthy to be noted that the appellant initially claimed to be in possession of the suit land and, therefore, sought injunction besides declaratory relief. However, subsequently, she got amended plaint and sought relief for possession of the suit land. The evidence on record goes to establish lawful possession of the respondent No. 1 over the suit land since 10-05-1976. He successfully proved the execution of agreement of sale by the respondent No. 2 in his favour. It is pertinent to note that the appellant was well aware of the agreement of sale between the respondents interse. It is for such a reason that the respondent No. 1 was joined as party in the earlier proceedings for recovery of maintenance allowance (Misc. Application No. 34/1976). The withdrawal of the said proceedings by the appellant was unconditional. No charge was created in the said proceedings. It is true that the right of ownership was not transferred in favour of the respondent No. 1 by virtue of his agreement of sale dated 10-05-1976. Still, however, since his agreement was much prior to commencement of the maintenance proceedings, the right ( 5 ) to seek specific performance of the agreement was available to him. The first Appellate Court noticed that the appellant had filed subsequent suit for recovery of maintenance allowance vide R.C.S. No. 211/1976 on 15th June, 1976 and on the same day, the defendant No. 2 admitted her claim. Therefore, consent decree (Exh-68) came to be passed in her favour. The conduct of the spouses would show that the decree rendered on admission of the respondent No.2 (husband) was collusive in nature. There is no sufficient evidence on record to show that the spouses had parted with company of each other and that the husband had abandoned the wife without any lawful accusations. The first Appellate Court, therefore, held that the collusive decree was brought about only with a view to defeat the lawful claim of the respondent No. 1. The small cause suit No. 88/1976 was decreed on 30-07-1976 on the same stage where the suit was filed and whether the defendant No. 2 (husband) admitted the claim of the wife. The plaintiff was unable to prove that the possession was available with her husband at the relevant time. In fact, there is nothing on record to ( 6 ) show that she was in actual possession when said compromise decree was brought about as a consent given by the appellant. 5. On perusal of the copy of small cause Darkhast No. 21/1976 (Exh-71), it would appear that the respondent No. 1 objected execution of the said decree and sought dismissal of the Darkhast proceedings. The learned Joint Civil Judge (J.D.), Latur allowed the objection petition and dismissed the Darkhast vide order dated 12-10-1977. Therefore, the decree could not be executed by the appellant. The respondent No. 2 has executed the sale-deed dated 17-10-1977 in favour of the respondent No. 1 after dismissal of the Darkhast. This is a glaring fact. 6. Considering the fact that as on the date of agreement of sale, there was no charge created on the suit land, in respect of the maintenance allowance payable to the appellant, and having regard to the fact that she was never inducted in possession of the suit land, before the consent decree or thereafter, there is ( 7 ) no question of applying section 14 (2) of the Hindu Succession Act. It is well settled that collusive and fraudulent acts would vitiate everything. Therefore, the first Appellate Court was right while holding that the collusive decree by the appellant and the respondent No. 2 could not impair rights of the respondent No.1. It is correctly held by the first Appellate Court that the appellant (plaintiff) was not entitled to seek declaratory relief and relief for possession. 7. In view of foregoing reasons, I do not find any merit in this appeal. The second appeal is, therefore, dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa172.93