ANNASAHEB Vs. SUMATILAL ZUMBARLAL GUJARANI

JUDGEMENT

(1.) This civil application is filed by a third party seeking leave to prefer an appeal for challenging the judgment and decree dtd. 18/7/2016 passed by the learned District Judge-2, Shrirampur in Regular Civil Appeal No.12 of 2009. BASIC FACTS:

(2.) By the judgment and decree passed in Regular Civil Appeal No.12 of 2009, the first appeal preferred by original plaintiff was partly allowed and the judgment and decree dtd. 30/12/2008 passed by 2nd Joint Civil Judge, Junior Division, Shrirampur in Regular Civil Suit No.24 of 2004 was set aside and suit was partly decreed. Regular Civil Suit No.24 of 2004 was filed by Respondent No. 1/ Sumatilal Zumbarlal Gujarani ("Sumatilal") for declaration of his title and possession over the suit property being gut no. 129, admeasuring about 2 Hectares out of total area of 3 Hectares 62 R, on the basis of a registered sale deed dtd. 21/10/1991 executed by the original owner Ajitkumar Mirikar ("Ajitkumar"). In the said suit a prayer was made for challenging a subsequent sale deed dtd. 15/2/1999 executed by respondent nos. 2 to 4 (heirs and legal representatives of Ajitkumar) in favour of respondent no. 5/Ratilal Kothari (Ratilal) in respect of gut no. 129, including the suit property. The said suit was dismissed. Hence, Sumatilal had preferred the said appeal. The first appellate court by the aforesaid judgment, partly allowed the appeal and decreed the suit in favour of Sumatilal, thereby granting relief of cancellation of the sale deed 15/2/1999 to the extent of the suit property.

(3.) The applicants are claiming title to property being land Gat No.129 admeasuring 3 hectares 48 R (including the suit property) through Ratilal. It is the contention of the applicants that by the aforesaid decree passed by the first appellate court, the sale deed in favour of Ratilal has been set aside. Thus, the case of the applicants is that since by the decree passed in the said appeal, the sale deed in favour of Ratilal is set aside, the title of the present applicants pursuant to the sale deed executed by Ratilal in their favour is directly affected. It is further submitted that Ratilal has not taken any steps to challenge the said decree. Hence, it has become necessary for the applicants to challenge the decree passed by the District Court against Ratilal, for the purpose of getting clear and marketable title to the property purchased by the applicants from Ratilal. It is further submitted that in view of the sale deed executed in favour of the applicants by Ratilal, the applicants have stepped into the shoes of Ratilal and are thus, entitled to challenge the decree passed by the District Court by way of filing a Second Appeal in this Court.