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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 11 TH DAY OF NOVEMBER, 2013

BEFORE

THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA

RSA.No.2717/2005 (Dec.)

BETWEEN

1. SRI SHASHIKANT BABURAO @ JIVABA HAWALDAR @ SHELAR, AGE: 50 YEARS, OCC: SERVICE AND AGRICULTURE R/O CHAVAN WADA, , TAL CHIKODI, DIST .

2. SHRI BHAUSAHEB BABURAO @ JIVABA HAWALDAR @ SHELAR, AGE: 60 YEARS, OCC: AGRICULTURE, R/O CHAVAN WADA, NIPANI, TALUK:CHIKODI, DIST BELGAUM. ... APPELLANTS

(By Sri D RAVIKUMAR GOKAKAKAR, ADV. FOR APPELLANTS - ABSENT)

AND

1. SHRI HARIBA, CALLING FALSELY AS S/O BABASAHEB CHAVAN SINCE DECEASED BY HIS LRS: 1A. SMT.TILOTTAMA W/O HARI CHAVAN, AGE: MAJOR. R/O , TQ: CHIKODI, DIST: BELGAUM. : 2 :

1B. SMT.MEENA SHANKAR LONDHE, AGE: MAJOR, R/O VADAGAON KAPASHI, TQ: KAGAL, DIST: . .

1C. SMT.VRANDA AJIT JAGTAP, AGE: MAJOR, R/O SONARWADI, TQ: BHUDARGAD, DIST: KOLHAPUR. MAHARASHTRA.

1D. SMT.CHITRA ARVIND KONDAK PAWAR, AGE: MAJOR, R/O RUPALI APARTMENT, S-4, BUILDING NO.4, NEW PALACE PARISAR, TAL: KARVEER, DIST: KOLHAPUR. MAHARASHTRA.

1E. PRUTHVIRAJ, S/O HARI CHAVAN. AGE: MAJOR. R/O SHIRAGUPPI, TQ: CHIKODI, DIST: BELGAUM.

SHRI VISWASRAO VISHNUPANT DESAI AGE: 75 YEARS OCC: NIL, R/O CHAVAN WADA, NIPANI, TALUK CHIKODI, SINCE DEAD BY LRs:

2(A) SMT ANASUYA VISHWASRAO DESAI, AGE: 65 YRS, OCC: HOUSEHOLD WORK, R/O CHAVANWADA, NIPANI TAL CHIKODI. SRI RAMESH @ BABA SAHEB VISHWASRAO DESAI, : 3 :

AGE: 43 YEARS OCC:BUSINESS. REST –DO-

3. SHRI VIJAY VISHWASRAO DESAI, AGE: 41 YEARS OCC: BUSINESS, R/O CHAVANWADA, NIPANI, TAL CHIKODI (DIED- HIS LR IS 2A ALREADY ON RECORD)

4. SMT KALAPANA D/O VISHWASRAO DESAI, AGE: 35 YEAS OCC: HOUSEHOLD WORK, R/O CHAVANWADA, NIPANI, TAL CHIKODI. SUREKH @ BALASAHEB VISHWASRAO DESAI AGE: 37 YEARS OCC: TRADE R/O CHAVANWADA, NIPANI TAL CHIKODI.

5. SMT SANGITA W/O DEEPAK JADHAV, AGE: 29 YEARS OCC: HOUSEHOLD WORK C/O DEEPAK MARUTI JADHAV, MANE COLONY, SAMRAT NAGAR, KOLHAPUR.

6. SMT MEENA ARJUNRAO PATIL AGE: 39 YEARS OCC: HOUSEHOLD WORK, R/O ARCHIES APARTMENTS, 3RD LANE, RAJARAMPURI, KOLHAPUR.

7. SMT JALADEVI W/O MOHANRAO BHUIBHARE, AGE: 33 YEAS OCC: HOUSEHOLD WORK, R/O C/O MOHANRAO BHUIBHARE, BEHIND TOURIST HOTEL NEW SHAHUPURI, KOLHAPUR. : 4 :

8. SRI BABASAHEB VISHWASRAO DESAI, AGE: 40 YEARS, OCC: HOTEL BUSINESS. R/O CHAVANWADA, NIPANI, TAL CHIKODI.

9. SHRI SURESH @ BALU VISHWASRAO DESAI AGE: 35 YEARS OCC: HOTEL BUSINESS, R/O CHAVAN WADA, NIPANI, TAL CHIKODI.

10. SHRI ANANDRAO APPASAHEB HAWALDAR @ SHELAR, AGE: 80 YEARS, OCC: AGRICULTURE, R/O CHIKODI, DIST BELGAUM.

11. SHRI SHIVAJIRAO BABURAO @ JIVABA HAWALDAR @ SHELAR AGE: 70 YEARS, OCC: AGRICULUTRE, R/O 247 KELAVKAR BUNGALOW TARABAI PARK, KOLHAPUR.

12. SHRI ASHOK BABURAO @ JIVABA HAWALDAR @ SHELAR, AGE: 51 YEARS, OCC: AGRICULTURE R/O CHAVANWADA, NIPANI, TAL CHIKODI.

13. SMT VIMAL BAPUSAHEB PATIL AGE: 65 YEARS OCC: HOUSEHOLD WORK, C/O BAPUSAHEB PATIL, PATIL GALLI, BELGAUM. : 5 :

14. SMT SUNANDA RAMACHANDRA DESAI, AGE: 55 YEARS OCC: HOUSEHOLD WORK, R/O MADILAGE BUDRUK, TAL BHUDARGAD, DIST KOLHAPUR.

15. SHRI BAPUSAHEB HAIBATRAO JAGADALE, AGE: 50 YEARS OCC: AGRICULTURE. R/O SHIROL, DIST KOLHAPUR.

16. SHRI HAIBATRAO MALHARRAO JAGADALE AGE: 80 YEARS OCC: AGRICULUTRE R/O SHIROL DIST KOLHAPUR.

17. THE BANK OF BRANCH NIPANI, BY ITS MANAGER A/P NIPANI, TAL CHIKODI. ... RESPONDENTS

(By Sri SACHIN S. MAGADUM, ADV. FOR R.1(B) TO R.1(E), R.8 TO R.9, SRI.G.BALAKRISHNA SHASTRY, ADV.FOR R.1B-E & R.8, SRI.V.P.KULKARNI, ADV. FOR R.2, R.4 TO 7. R.13, R.14 & R.17 SERVED. R.1A, R.3, R.10, R.11, R.12, R.16 – DNP vide C.O.dt:29.10.2013)

THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET-ASIDE THE JUDGEMENT & DECREE DATED: 15.11.05 PASSED IN R.A.NO.83/95 AND 94/95 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHIKODI, AND SET ASIDE THE JUDGEMENT AND DECREE DATED: 6.09.95 PASSED IN OS.NO.141/94 ON THE FILE OF THE MUNSIFF & JMFC, NIPANI, AND ETC.

THIS RSA COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: : 6 :

JUDGMENT

In view of dismissal of appeal against R.1(a), R.3, R.10,

R.11, R.12 and R.16 on 29.10.2013 for non-prosecution, the appeal was ordered to be listed today to hear regarding maintainability of appeal against other respondents.

2. Defendants 3 and 5 in the suit have preferred this appeal challenging the concurrent judgments and decrees of the courts below. Plaintiffs filed the suit in

O.S.141/1994, seeking the relief of declaration that the lease deed for a period of 50 years in favour of defendant No.2 by defendant No.1 is unauthorised, illegal and not binding on the plaintiffs. During the pendency of the suit, plaintiff

No.1- Radhabai died and her son Hariba Babasaheb Chavan was brought on record as Plaintiff No.2. Plaintiff No.3

Rajakka died and her LRs were brought on record as plaintiffs 3(a) to (c) in the said suit. The suit of the plaintiffs was decreed against defendants 2 to 11 declaring that lease deed dated 3.1.1941 executed by deceased defendant-1 in favour of defendant-2 for a period of 50 years in respect of the suit properties situated at is unauthorised, : 7 :

illegal and not binding on the plaintiffs beyond the life time of defendant-1. It is further declared that gift deed dated

21.7.1977 executed by defendant-1 in favour of defendant-3 in respect of RS.No.37 of Shiraguppi village is void and not binding on the plaintiffs beyond the life time of defendant-1.

It is further declared that plaintiff-2 has right to manage the

Darga called “Hazarat Piran Pir Dastagirsaheb” to receive offerings made before the said Darga to the extent of more than Rs.5/-. Consequently, defendants-2 to 11 are restrained by way of permanent injunction from committing any waste or any act injurious to the right of reversion of the plaintiffs in respect of the suit properties.

3. Aggrieved by the said judgment and decree of the trial court, defendants-5, 2 and 3 had filed

RA.Nos.83/95, 92/95 and 94/1995, respectively, before the lower appellate court. The lower appellate Court by common

judgment and decree dated 15.11.2005 dismissed the appeal and confirmed the judgment and decree passed by the Trial

Court. : 8 :

It is only 5 th defendant who had filed RA.83/1995, has preferred this second appeal challenging the concurrent

judgments of the courts below. As already stated, this appeal against R.1(a), R.3, R.10, R.11, R.12 and R.16 came to be dismissed on 29.10.2013 for non-prosecution. By perusal of the judgments and decrees of the Courts below, it is found that they are all contesting respondents and now in view of dismissal of appeal against contesting respondents this appeal against other respondents would not survive for consideration and therefore, it was ordered to be listed today for hearing regarding maintainability of the appeal against other respondents.

4. Today also there is no representation for the appellants. Hence, the appeal is dismissed for non- prosecution.

SD/- JUDGE

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