1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.53 OF 1992 1 Rangrao Dhondiba Sawant, 2 Yuvraj Rangarao Sawant, Since deceased through his L.R. Smt. Suman Yuvraj Sawant. 3 Dattatraya Rangarao Sawant, 4 Kantilal Rangrao Sawant. ..Appellants. Vs. 1 Chhagan Appa Sapkal, 2 Baban Appa Sapkal, 3 Sonab ai Appa Sapkal, 4 Krishnabai Dadsaheb Sawant. ..Respondents. Mr. D.S.Sawant for the Appellants. CORAM : R.S. MOHITE, J. DATE : Reserved on 9.2.2010 Declared on 30.3.2010 JUDGMENT : 2 1 This appeal has been filed by the appellants impugning a judgment and decree passed by 7 th Additional District Judge, Pune on 21.7.1990 in Civil Appeal No.847 of 1985. The Appellant No.2 is daughter in law of Appellant No.1(Original plaintiff) where as the Appellants Nos. 3 and 4 are his sons. Original Appellant No.2 Yuvraj( deceased) was defendant No.5 in the suit whereas appellant Nos. 3 and 4 were the original defendants 6 and 7 in the suit. Defendant Nos. 5 to 7 were supporting the plaintiffs. 2 Brief facts of the case are as under. a) That in the year 1942 the plaintiff Rangarao D.Sawant wanted to purchase a land bearing Survey No.42/1/2/3 from Village Udhat from one Govind Deshpande. He was however, short of funds. One Appa Sapkal who was resident of nearby village was plaintiff s friend. According to the plaintiff 3 he and Appa Sapkal entered into an agreement whereby Appa Sapkal would contribute 50% of the purchase price. It was agreed that Appa Sapkal would recover his contribution with interest from the sale price of the produce from land which was to be sold to three specified agencies. Initially by a registered sale deed dated 22.5.1942, the plaintiff and Appa Sapkal jointly purchased 8- Acres of land from the aforesaid Govind Dehspande. The owner Govind Deshpande thereafter sold 3-Acres and 19-Gunthas of land to one Pore who in turn by a further registered sale deed dated 23.1.1947 sold the said land jointly to the plaintiff and Appa Sapkal. It is an admitted position that, in so far as registered sale deeds dated 22.5.1942 and 23.1.1947, the plaintiff and Appa Sapkal were joint purchasers. b) It is the plaintiff s case that some time in March, 1960 Appa Sapkal made a statement before the Tahsildar that he had recovered his share of 4 the purchase price and therefore, land should be transferred in the name of the plaintiff. This statement according to the paintiff was made in order to effect a revenue entry in the plaintiff s favour. However, later on, Appa Sapkal changed his mind and lodged a protest with the revenue authorities. c) In 1964, Appa Sapkal filed a suit being Special Civil Suit No.153/1964 for a declaration that he had half share in the suit property. In the said suit, present plaintiff filed a written statement contending that Appa Sapkal had agreed to transfer his half share to the plaintiff as he has recovered his contriubution of the sale price. The record indicates that the said suit was initially dismissed on 29.4.1967. Appa Sapkal then carried the matter to the High Court by filing First Appeal No.195/1968 and the said first appeal came to be allowed by this court on 14.12.1976. The finding of the High Court was that there could be no 5 transfer of the share by Appa Sapkal in favour of the plaintiff unless there was a registered document and therefore, Appa Sapkal continued to be a half share holder in respect of the suit proiperty. It appears that matter was carried upto the Apex Court and the SLP was disposed off by ther Supreme Court on 18.9.1978 with some modification. The Supreme Court however, did not up set the finding of the High Court that Appa Sapkal continued to be the owner of the half portion of the suit property. 3 After this litigation was over, plaintiff filed a suit on 27.4.1979 against the heirs of Appa Sapkal, who had expired pending earlier litigation, for a direction to execute a sale deed in respect of the half share of the suit land as aforesaid. This suit was decreed by the trial court on 20.4.1985 but by the impugned judgment and order, the first Appellate court allowed the appeal and in such circumstances, this second appeal came 6 to be filed. 4 Substantial questions of law on the basis of which this appeal was admitted are as under. a) Whether the plaintiff s suit is hit by principles of res judicata when the issues in earlier Suit No.153 of 1964 filed by the father of defendants herein are not directly in issue in this suit though the present suit is between the same parties? b) Whether plaintiff is estopped from claiming any relief in this suit in respect of suit land in view of decision in Suit No.153 of 1964 when the relief granted to defendants father in earlier suit were different from the reliefs claimed by plaintiff in this suit? 7 5 As regards the first substantial question of law, in my view no error can be found with the finding of the Appellate Court that the present suit was hit by the principles of res judicata. It is clear from the record that in 1964 a suit bearing No.153 of 1964 was filed by Appa Sapkal for declaration that he had a half share in the suit property. In the said suit, it was open for the present plaintiff to file a counter claim for the relief which he has sought in the present suit. This he did not do. This litigation was decided upto the High Court and Appa Sakpal held to have continued to hold half share in the suit property. The present suit was filed by the plaintiff against the heirs of Appa Sapkal for a relief which could have been claimed by him by way of counter claim in the earlier suit. The relevant part of section 11 of the Code of Civil Procedure 1908 and the relevant explanation which is Explanation IV is as under . 8 11. Resjudicata- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raiseSd, and has been heard and finally decided by such court. Explanation-IV-Any matter which might and ought to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit . 6 In my view, the cause of action for both the suits were essentially events which occured prior to the filing of the first suit i. e. purchase of the land by a registered sale deed dated 22.5.1942 and purchase of the remaining suit land by a registered sale deed dated 21.9.1947. In this view of the matter, it is clear that if at all the present plaintiff wanted to obtain this relief he ought to have taken the ground taken by him in 9 the earlier suit and ought to have filed a counter claim seeking the relief which he has sought in the present suit. This has not been done. He cannot be permitted to have a second round of litigation on the same issue pertaining to his right in the suit property. The first substantial question of law as raised is therefore, without any substance. 7 Once it is held that the plaintiff s suit is hit by principles of res-judicata, the second question whether the plaintiff is estopped from claiming any relief in the suit, does not arise. 8. There is therefore, no substance in the second appeal and the same is dismissed, ( R.S.MOHITE, J.)