-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.608 OF 2001 APPEAL NO.608 OF 2001 APPEAL NO.608 OF 2001 Smt.Tiraj Elice Fudtado ...Appellant vs. Madulibai Francis Ghosal & Ors. ...Respondents Mr.Uday Warunjikar for the Appellant Mr.Rajesh Parab h/f Mr.A.J.Almeda for Respondent Nos.1 & 2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard Advocate for the Appellant. The Appellant is the original first defendant in a suit filed by the Respondent No.1 and 2. With a view to appreciate the submissions made by the learned Advocate for the Appellant, it will be necessary to refer to the facts of the case in brief. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the trial court. The suit relates to the land bearing survey no.48 Hissa Nos.3,13, 16 and 17 at village Dhovali, Taluka Vasai, District Thane. The plaintiffs are the sisters of the deceased husband of the first Defendant. According to the plaintiffs the suit property was owned by their father viz.Pavlu Zuju Fudtado. A reliance is placed on the will dated 7th November 1970 executed by the said Pavlu. As per the said will, the suit property was equally distributed amongst the plaintiffs and the first defendant’s husband. The will provides that if the -2- husband of the 1st defendant dies without any issue, the 1/3rd share of the 1st Defendant’s husband will revert back to the Plaintiffs after the death of the 1st Defendant and her husband. Reliance is placed on the probate of the said will. The case made out in the said suit is that the first defendant has no right to sale the suit property as she has only a life interest in the suit property in view of clause 4 of the said will. It is pointed out that there is no issue born to the first defendant from her wedlock with the plaintiffs’ brother. Therefore, the prayer in the suit is for perpetual injunction restraining the first defendant from alienating the suit property and from interfering with possession of the plaintiffs over the suit property. The said suit was contested by the first defendant on various grounds, such as bar of Rule 2 of Order II of the Code of Civil Procedure,1908 and principles of res judicata. The trial court decided all the issues in favour of the plaintiffs except the issue of res judicata. 2. The learned trial Judge came to the conclusion that bar of constructive res judicata is attracted as the relief which is claimed in the present suit could have been claimed by the Plaintiffs in R.C.S.No.267 of 1989 against the first defendant herein and one Bahadursingh Rajput. 3. In an Appeal preferred by the original plaintiffs, the -3- Appellate Court has interfered and the suit has been partly decreed restraining the Appellant-first defendant from disposing of the suit rooms in favour of the Respondent Nos.2 and 3. 4. The submission of the learned Advocate for the Appellant is that the present suit as well as the suit No.267 of 1989 related to the same property in the sense that the land bearing survey No.48 Hissa No.16 is the subject matter of both the suits. His submission is that the plaintiffs could have prayed for the same relief of injunction in earlier suit as at the time of filing the earlier suit, they could have claimed rights on the basis of the will. He placed reliance on the decision of the Apex Court in case of Ishwardas Vs. The State of M.P. and others [AIR 1979 S.C. page 551), Korin Vs. Indian Cables Co.Ltd. and others [AIR 1978 S.C. page 312] and Srimati Raj Lakshmi Dasi and others vs. Banamali Sen and others (AIR 1953 Supreme Court 33) and submitted that the principles of constructive res judicata are applicable. 5. I have carefully considered the submissions. It is true that in the plaint in the present suit, the land bearing survey no. 48 Hissa No.16 has been mentioned. However, in the same paragraph the plaintiffs have referred to house no.74/10 bearing Hissa No.17 survey No.48. The relief of injunction which is granted by the Appellate Court by the -4- impugned Decree is in respect of the rooms in the house property which is specifically described in paragraph 1 of the plaint as bearing house No.74/10 out of Hissa No.17 of survey No.48. As pointed out earlier, the decree is confined only to the two rooms in the chawl. 6. Perusal of the plaint of the earlier suit No.267 of 1989 shows that the allegation is that the first defendant in the present suit had allowed one Bahadursingh Rajput to occupy the property bearing survey No.48 Hissa No.16 and the said Rajput has constructed a temporary shed. Therefore, the substantive prayer is for possession of the area occupied by the said Rajput after demolition of the construction made by him. Thus, the decree which is passed in the present suit has nothing to do with the subject matter of R.C.S.No.267 of 1989. The earlier suit was filed essentially to claim relief against Bahadursingh. That is the reason why there is a finding of fact recorded by the Appellate Court in paragraph 14 of the Judgment that subject matter of the two suits is different. 7. There is no dispute that the will of the father of the plaintiff has been probated and as per the will, the first defendant is entitled only to a life interest. The only relief granted by the Appellate Court against the first defendant is that she is restrained from transferring the suit rooms in favour of the other defendants in the suit. -5- Therefore, the Appellate Court was right in holding that principles of constructive res judicata will not apply in the present case. The trial court after holding all the issues in favour of the plaintiff held that the suit is barred by the principle of constructive res judicata. The Appellate Court rightly held that the bar is not at all attracted. There is no merit in the Appeal and the same is dismissed with no order as to costs. 8. Civil Application No.570 of 2001 stands disposed of in view of dismissal of the Appeal. JUDGE JUDGE JUDGE