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CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 289 OF 2020
1. Rohit Ramesh Palve
Age 28, Occu - Agriculturist
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2. Rekha Ramesh Palve
Age 49, Occu – Agriculturist
Both r/o Samart Ashok Nagar, Dasak, District - Nashik
] ...Appellants
Age : 66
R/o. I.S.P. Staff Quarters, F. No. 46, Behind
ISP School, Nashik-Road.
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2. Punjabai Sadu Tapase
Age : 46, Occu : Household, R/o Dahegaon, Tal and Dist. Nashik.
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3. Laxmibai Dhanaji Palave, Age : 45, Occu : Household
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4. Ranjendra Dhanaji Palave
Age : 45, Occu:
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5. Shobhabai Balu Pawar
Age : 49
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6. Sunita Dhanaji Palave
Age :
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7. Manisha Dhanaji Palave
Age :
Resp. No. 3 to 7 R/o Wadala, Tal. And Dist.
Nashik
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8. Kisan Waman Borade, Age : r/o Pimpalgaon Khamb, Tal and Dist. Nashik
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9. Shantaram Deoram @ Jayaram Navale
R/o C/o Kisan Waman Borade, Bhavani Nagar, At Post Pimpalgaon khamb, (Via Ambad), Tal.
And Dist Nashik.
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10. Suman Bapu Mate
Age : 76
R/o Pimpalgaon Khamb, Tal and Dist Nashik.
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11. Shobha Nandu Jadhav, Age : 74
R/o. Aadgaon, Tal and Dist Nashik.
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12. Baby Ashok Porje, Age : 71, R/o Pegalwadi, Tal. Trimbakeshwar, Dist. Nashik.
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13. Sindhubai Sukhdeo Suryavanshi, Age : 69
R/o Saptashrungi Mata Nagar, At
Nandurgaon, Post Madsangavi, Tal and Dist
Nashik.
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14. Murlidhar Keru Sonawane
Age : Major, ]
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15. Chandrabhaga Keru Sonawane, Age : Major
R/o Pimpalgaon Khamb, Tal and Dist. Nashik
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] ...Respondents
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Mr. Nikhil M. Pujari for Appellants.
Mr. Amey Deshpande, Ms. Niyati Sontakke for Respondent Nos. 5 to 7.
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JUDGMENT
1. The Second Appeal has been preferred by the Plaintiff against the concurrent findings rendered in Regular Civil Appeal No. 97 of 2013 by the first Appellate Court on 15th April, 2019 arising out of judgment and decree dated 8th March, 2013 passed in Regular Civil Suit No. 227 of 1996 by the Joint Civil Judge, Junior Division, Nashik.
2. Briefly stated the facts of the case are that Plaintiff had filed a suit for partition in respect of property described in paragraph nos. 1A to 1D. The suit property is claimed to be an ancestral property and originally owned by one Shankar. The Plaintiff No. 1 is the son of Ramesh, who is the grandson of Shankar and Plaintiff No. 2 is wife of Ramesh. It is pleaded that Defendant Nos. 1 to 10 who were the other legal heirs sold the suit property described in clause 1(c) of the Plaint to Defendant Nos. 11 and 12 and in respect of properties at Clause 1A, B and D, an Agreement to Sale came to be executed on 25th March, 1990 in favor of Defendant Nos. 13 and 14. During the pendency of the proceedings, the suit came to be settled by the Plaintiffs with Defendant Nos. 11 and 12 and hence, no relief was claimed in respect of the property described in clause 1(c) of the Plaint.
3. The Trial Court by judgment dated 8th March, 2013 appreciated the evidence on record. It held that Defendant Nos. 13 and 14 had pleaded that properties were alienated for well-being of joint family. It noted that Ramesh was alive during execution of Agreement for Sale and had not challenged the agreement. The Trial Court noted that during cross-examination, there is no denial obtained from Defendant No. 13 regarding evidence i.e. the alienation was for legal necessity for the marriage of daughters of family. The Trial Court has observed that it is not suggested there was no need for the family to sell the property. The Trial Court dismissed the suit by observing that though the Plaintiffs had prayed for declaration against one of the Sale Deed executed in favor of Defendant Nos. 11 and 12, however, has not claimed any relief against the Sale Deed executed in favor of Defendant Nos. 13 and 14.
4. The Appellate Court has confirmed the findings of the Trial Court and has held that in the absence of any relief being sought by the Plaintiffs in respect of the properties mentioned in clause 1A, B and D sold to Defendant Nos. 13 and 14, the Court cannot pass any order on the basis of averments.
5. Learned counsel appearing for Appellants-original Plaintiffs would submit that properties were alienated by Defendant Nos. 1 to 10 in favour of Defendant Nos. 13 and 14 under an Agreement for Sale which did not contain the signature of the deceased Ramesh. He submits that the suit has been filed seeking partition of property and as the Plaintiffs have share in the property, despite alienation, the same ought to have been allowed. Upon query by this Court as to whether any relief has been sought in respect of alienation in favor of Defendant Nos. 13 and 14, learned counsel appearing for Appellant would fairly concede that declaration was sought against the Sale Deed executed in favor of Defendant Nos. 11 and 12, however, no relief has been sought against the Sale Deed executed in favor of Defendant Nos. 13 and 14.
6. I have considered the submissions and perused the judgment of the Trial Court and the First Appellate Court.
7. During the pendency of the proceedings, the dispute was settled with Defendant Nos. 11 and 12 and hence, no relief was pressed as against Defendant Nos. 11 and 12. The Plaintiff had prayed for declaration against the Sale Deed executed in favor of Defendant Nos. 11 and 12, but failed to seek any relief qua the alienation in favor of Defendant Nos. 13 and 14. It was necessary for the Plaintiff to seek the specific relief that the alienation in favor of Defendant Nos. 13 and 14 does not bind the share of the present Plaintiffs. In the absence of any such relief being prayed in the Plaint, the Trial Court and the First Appellate Court has rightly rendered concurrent findings that in the absence of any relief sought in respect of alienation in favor of Defendant Nos. 13 and 14, the suit is liable to be dismissed. That apart, even on merits based on the evidence, which has come on record, the Trial Court as well as the first Appellate Court has come to a finding that the alienation in favor of Defendant Nos. 13 and 14 was for the purpose of legal necessity. It is not denied that Defendant No. 1 was Karta of the joint hindu family and the Agreements for Sale as well as Sale Deed was executed by him. During his life time, Ramesh did not object to the alienations. It is not demonstrated from evidence on record that the sale was not for legal necessity. The alienation would therefore bind the Plaintiffs. There was no perversity which is demonstrated in appreciation of evidence by the Trial Court and Appellate Court.
8. In light of the above, no substantial question of law arises for consideration. The Second Appeal stands dismissed.
9. In view of above, nothing survives for consideration in pending Applications, if any, and the same stand disposed of. [Sharmila U. Deshmukh, J.]