B.P. Dharmadhikari, J.

1. Original plaintiffs challenge the judgment dated 15.7.1991 delivered by the learned Single Judge of this Court in First Appeal No.133 of 1976 setting aside the decree of Trial Court. Civil Judge, Senior Division, Chandrapur, which had decreed their Special Civil Suit No.33 of 1971 on 30.6.1976 and declared that sale-deed dated 20.10.1951 executed by their father (defendant no.5) Trimbakrao in favour of the defendant nos. 1 and 3, deceased Mahadeo and Shrawan was not binding on their ?th share in the joint Hindu family property. Said Suit stands dismissed because of the impugned judgment and decree of the learned Single Judge.

2. Plaintiffs are the sons of original defendants no. 5 Trimbakrao and no. 6 Shalinibai. Trimbakrao inherited about 350 acres of agricultural lands and malgujari rights to few villages. He married Shalinibai in 1949. Plaintiff no. 1 Avinash was born on 15.8.1950; Plaintiff no. 2 Shrikant on 6.5.1957; no. 3 Dhananjay on 15.8.1959; no.4 Umakant on 22.3.1960 and plaintiff no. 5 Laxmikant on 1.11.1964. These sons of Trimbakrao filed Special Civil Suit No. 29 of 1971 on 03.08.1971 for declaration that four sale-deeds executed by Trimbakrao between 1952 to 1956 alienating about 47.24 acres for consideration of Rs. 25,750/- were not binding on their ?th share in the ancestral property. That suit was decreed on 30.5.1971 and First Appeal No. 99/1976 against it by the purchasers (therein) came to be allowed on 20.11.1987. Here we are concerned with the adjudication in other Special Civil Suit No. 33/1971. Plaintiffs assailed the sale dated 20.10.1951 at Ex. 44 of Kh. no. 10 admeasuring 20.69 acres of mouza Kheda, Tah. Warora District Chandrapur by Trimbakrao for Rs. 7241.50/- in favour of defendant nos.1 and 3 and deceased Mahadeo and Shrawan. Civil Judge, Senior Division, Chandrapur has decreed on 30.6.1976 their Special Civil Suit No. 33 of 1971 and declared that sale-dated dated 20.10.1951 was not binding on their ?th share. First Appeal No. 138 of 1976 filed by the purchasers therein has been allowed by the learned Single Judge vide impugned judgment and decree dated 15.7.1991. Both the judgments of this Court in respective first appeals are delivered by the same learned Judge.

3. Vide judgment and decree dated 30.6.1976 in present Special Civil Suit No.33 of 1971, the trial Court directed the purchasers defendants to restore possession of field khasara no. 10 to the plaintiffs and defendants have been given liberty to file a suit for partition to get their share separated. Plaintiffs accordingly, in execution, recovered it and today continue in possession. Proceedings for restitution instituted by the purchasers after judgment in First Appeal are stayed by this Court. Trimbakrao has expired in 1979.

4. We have heard Shri R.L. Khapre, learned Counsel for the plaintiffs and Shri A.Parchure with Shri Deshpande, learned Counsel for the contesting defendants.

5. After pointing out the facts, Shri Khapre, learned Counsel submits that (I) Consideration in the appellate judgment is eclipsed by earlier conclusions recorded by the learned Single Judge while deciding a First Appeal filed by the other purchasers from Trimbakrao. Sale deeds there were executed much later by Trimbakrao and surrounding circumstances then and prevailing in 1951 could not have been same. (II) Earlier judgment is delivered in First Appeal No. 99 of 1976 on 20.11.1987 by the same Hon'ble Judge but between different parties and in relation to four sale deeds executed between 1951 to 1956. Hence, the findings recorded therein do not operate as res judicata in present matter. (III) First Appeal No. 99 of 1976 considered challenge to the judgment and decree dated 30.5.1976 delivered by the Trial Court in Special Civil Suit No. 29 of 1971. (IV) Burden to prove existence of the legal necessity warranting the sale