CRA 126/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 126/2010 Pandurang s/o Namdeo Dhage, Age : 70 years, Occu. Agriculture, R/o Chinchpur Dhage, Tq. Bhoom, Dist. Osmanabad. ...Applicant. Versus Vasudeo s/o Dagadu Dhage, Age : 57 years, Occu. Service & Agriculture, R/o C/o Asstt. Engineer Maharashtra State Electricity Distribution Company Ltd., Tuljapur Dist. Osmanabad. ...Respondent. Shri N.L. Jadhav, Advocate for applicant. Shri D.B. Pawar, Advocate for respondent sole. CORAM : A.V. NIRGUDE, J. Date : 15th February, 2011. ORAL JUDGMENT:- 1 This revision application is moved against the order dated 03/07/2008 passed by IIIrd Jt. Civil Judge, (Junior Division), Bhoom in R.C.S. No. 284/2002 below Exh 35. The applicant was the defendant in the suit and had filed an application seeking dismissal of the suit on the ground that it was hit by principle of res judicata. The learned judge by the impugned order rejected his request. 2 It is common ground that Gat No. 222 is the applicant’s property and Gat No.221 is the respondent’s. There is a common boundary between the lands. The applicant in 1990 had filed a suit against the respondent alleging that the respondent had encroached 15 R area of his land towards north the boundary. The said suit was decreed and now the execution is pending. After the conclusion of CRA 126/2010 2 that suit, the respondent filed the present suit. He is contending that the land Gat No.222 came to his share in the family partition. He said that in the partition, he was entitled to a piece of land admeasuring 1 H 15 R. He said, during the consolidation scheme, the revenue officer wrongly mentioned that he had made encroachment on the applicant’s land to the extent of 15 R. He said, on the basis of this wrong entry, the applicant secured the decree in his suit of 1990. He said that now he has moved applications to the revenue officers and they had agreed to correct their record. He said that as per the corrected record, it is the applicant who has encroached on his land to the extent of 3 R. He therefore, filed the suit for recovery of 3 R land. He also sought cancellation of the decree in the previously filed suit. 3 The question is whether the present case is hit by principle of res judicata. The answer is in affirmative. What the respondent is now saying in the plaint is nothing but his defence in the previously filed suit, in which he was defendant. Either this was his defence in the earlier suit or this could have been one of the contentions that he could have raised there. Admittedly, the respondent had not filed any counter claim in the previously filed suit and in order to over come that, the present suit is filed. The present suit thus is completely hit by principle of res judicata. The learned judge while appreciating the case, did not take into account as to what had happened in the previously filed suit. She has not paid attention to the pleadings of the previously filed suit and that is why taking a myopic view, she held that the issues in the present suit are different. The learned judge also gave importance to the fact which occurred after disposal of the previously filed suit. She has mentioned in the order that the present suit is filed after the lands were measured. It is CRA 126/2010 3 observed and it is based on the pleading of the respondent that the land Gat No.221 belonging to the respondent was measured and since the measurement record showed that the applicant had made encroachment to the extent of 3 R of land Gat No.222, the present suit is an independent dispute. The learned judge should have realized that whatever the respondent is saying in the plaint now, ought to have been stated in the written statement that he had filed in the previously filed suit and so there could not have been a fresh suit between the parties because the question as to whether the respondent had encroached on land Gat no.222 or whether the applicant had encroached on land Gat no.221, was the subject matter of the previously filed suit which has reached its final conclusion. In view of this, the revision should succeed. ORDER a) The revision application stands allowed. b) Regular Civil Suit No. 284/2002 stands dismissed as hit by res judicata. [A.V. NIRGUDE, J.] ts k/ok