1. This is an appeal preferred by original defendant No.6 being aggrieved by the judgment and decree passed by learned Civil Judge, Junior Division, Ahmedpur in Regular Civil Suit No.217 of 1974 dated 16th April, 1979, whereby share of each of original plaintiff Nos. 2 to 5 was declared to be 8/81th in the suit field Survey No.107 admeasuring 26 acres and 27 gunthas and Survey No.112/B admeasuring 12 acres 26 gunthas both situated at Kingaon, Tal. Ahmedpur and for delivery of possession to plaintiff Nos. 2 to 5 to the extent of their shares by the present appellant in the property. Said judgment and decree was confirmed in Regular Civil Appeal No.57 of 1979 by the Additional District Judge, Latur on 16th October, 1987 without any modification.

2. The facts giving rise to this appeal regarding which there is no more dispute can be stated as below:-

One Vithalbuwa who died on 29.04.1963 was the original owner of the suit property. He was survived by his widow Yamunabai (who died subsequently on 05.03.1974), son Bhanudas (who died on 17.09.1972), plaintiffs and original defendant Nos. 4 and 5 who are daughters. After death of Vithalbuwa, Bhanudas sold 9 Acres land to defendant No.8 - Hariba.

3. Bhanudas died on 17.09.1972 leaving behind him two widows Kamalbai and Shobhabai and daughter Suman, who was then minor. Present appellant (who is defendant No.6) purchased both the lands excluding property which was purchased by defendant No. 8 - Hariba (present respondent No.12) by two sale deed dated 06.06.1974 and 03.04.1974 produced at Exh.87 and 88 respectively. Thereafter, the suit was filed in 1979 by five daughters of Vithalbuwa for declaration of ownership and for possession. They did not sue for partition and as a result Trial Court declared share of each of them to be 8/81th in both lands as stated earlier. However, he gave direction to present appellant (defendant No.6) to deliver both those fields to plaintiff Nos. 2 to 5 who should take possession of these fields to the extent of their share.

4. In para No.19, the learned Trial Court has observed as follows:-

"19. Issue Nos. 1 and 2 - So, now the suit property available for the devolution on and the succession of the plaintiffs is filed under No.107 - 26 acres, 27 gunthas (after deducting the 9 acres out of the original 35 acres, 27 gunthas sold to the defendant No.8 Hariba Karad) and filed Survey No.112B 12 acres, 26 gunthas. As to the parties entitled to succession these will be the five plaintiffs; their sisters defendant no.4 Shardabai, No. 5 Trivenibai, the two widows of Bhanudas viz.Kamalabai Defendant No.1 and Shobhabai Defendant No.2 and Kamalabai’s minor daughter Sumanbai Defendant No.3. It is now an admitted position that both these widows of Bhanudas have since remarried."

5. Learned Advocate Shri S.B. Patil vehemently attacked the judgment stating that there is no decree for partition and the order passed by the Trial Court regarding delivery of possession is wrong. The final order and decree passed by trial Court as confirmed by District Court is as follows:-

"Each of the plaintiff No.2 Kamalabai, No.3 Mahanandabai, No.4 Godavaribai, No. 5 Vaijantibai is hereby declared owner to the extent of 8/81th share in the suit fields Survey No.107, 26 acres, 27 gunthas and Survey No.112/B, 12 acres, 26 gunthas both situate at Kingaon Tahsil Ahmedpur. The defendant No.6 Eknath Buwa is directed to deliver both these fields to the plaintiffs Nos. 2,3,4,5, who shall take possession in these fields to the extent of their shares declared as above. The defendant No.6 Eknath Buwa shall bear the costs of the plaintiffs Nos. 2,3,4,5.”

The second para of the order is clearly illegal as it is contrary to Section 54 of the Code of Civil Procedure. In absence of case of previous partition or in absence of identification of exact 8/81th share of each of the plaintiffs, it is inexecutable. The learned advocate also argued that the sales were for legal necessity and the appellan