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 APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION SECOND SECOND SECOND APPEAL APPEAL APPEAL NO. 783 OF 2005 NO. 783 OF 2005 NO. 783 OF 2005 Shri Shri Shri Dattatray Vithal Samant & ors.Appellant Dattatray Vithal Samant & ors.Appellant Dattatray Vithal Samant & ors.Appellants vs vs vs Smt Smt Smt Anjani Anjani Anjani Sadashiv Samant & ors..Respondents Sadashiv Samant & ors..Respondents Sadashiv Samant & ors..Respondents Mr.Anil Mr.Anil Mr.Anil Desai Desai Desai for Appellants for Appellants for Appellants Mr.A.S.Khandeparkar Mr.A.S.Khandeparkar Mr.A.S.Khandeparkar for Respondents for Respondents for Respondents CORAM CORAM CORAM : : : A.S.OKA, A.S.OKA, A.S.OKA, J J J DATED DATED DATED : : : 31st 31st 31st January, 2008 January, 2008 January, 2008 P.C. P.C. P.C. 1.1.1. Heard advocates appearing for the parties. Heard advocates appearing for the parties. Heard advocates appearing for the parties. 2.2.2. The appellants are the legal representatives of The appellants are the legal representatives of The appellants are the legal representatives of the the the original plaintiffs. The suit filed is for original plaintiffs. The suit filed is for original plaintiffs. The suit filed is for perpetual perpetual perpetual injunction in respect of the suit injunction in respect of the suit injunction in respect of the suit property property property more particularly described in para 1 of more particularly described in para 1 of more particularly described in para 1 of the the the plaint. The trial Court dismissed the suit. plaint. The trial Court dismissed the suit. plaint. The trial Court dismissed the suit. The The The decree decree decree of the trial Court has been confirmed in of the trial Court has been confirmed in of the trial Court has been confirmed in appeal. appeal. appeal. One of the findings recorded by the trial One of the findings recorded by the trial One of the findings recorded by the trial Court Court Court is that the suit is hit by the principles of is that the suit is hit by the principles of is that the suit is hit by the principles of res-judicata. res-judicata. res-judicata. 3.3.3. The submission of the learned advocate for the The submission of the learned advocate for the The submission of the learned advocate for the appellants appellants appellants is that even going by the findings is that even going by the findings is that even going by the findings recorded recorded recorded by the trial Court, the title of the by the trial Court, the title of the by the trial Court, the title of the predecessor predecessor predecessor of the respondents was not established of the respondents was not established of the respondents was not established as as as regards the area of 19 gunthas. He submitted regards the area of 19 gunthas. He submitted regards the area of 19 gunthas. He submitted that that that as the title of the predecessor of the as the title of the predecessor of the as the title of the predecessor of the respondents respondents respondents in respect of the said area out of the in respect of the said area out of the in respect of the said area out of the suit suit suit property is not established, the Courts could property is not established, the Courts could property is not established, the Courts could not not not have dismissed the suit on the ground that the have dismissed the suit on the ground that the have dismissed the suit on the ground that the 2 respondents respondents respondents have established their title. have established their title. have established their title. 4.4.4. I have carefully considered the submissions. A I have carefully considered the submissions. A I have carefully considered the submissions. A perusal perusal perusal of of of the cross-examination of the Constituted the cross-examination of the Constituted the cross-examination of the Constituted attorney attorney attorney of the original plaintiffs shows that of the original plaintiffs shows that of the original plaintiffs shows that Regular Regular Regular Civil Suit No.1 of 1977 was filed by the Civil Suit No.1 of 1977 was filed by the Civil Suit No.1 of 1977 was filed by the father father father of the original plaintiff for partition and of the original plaintiff for partition and of the original plaintiff for partition and separate separate separate possession. possession. possession. One Sadashiv Pandurang Samant One Sadashiv Pandurang Samant One Sadashiv Pandurang Samant was was was the 3rd defendant in the suit. The present the 3rd defendant in the suit. The present the 3rd defendant in the suit. The present respondents respondents respondents are the legal representatives of the are the legal representatives of the are the legal representatives of the said said said Sadashiv Samant. The perusal of the judgment Sadashiv Samant. The perusal of the judgment Sadashiv Samant. The perusal of the judgment inin in the earlier suit shows that the 3rd defendant the earlier suit shows that the 3rd defendant the earlier suit shows that the 3rd defendant therein therein therein raised a contention that the present suit raised a contention that the present suit raised a contention that the present suit property property property which was also the subject matter of the which was also the subject matter of the which was also the subject matter of the earlier earlier earlier suit was his self-acquired property. The suit was his self-acquired property. The suit was his self-acquired property. The trial trial trial Court while deciding the said suit held that Court while deciding the said suit held that Court while deciding the said suit held that the the the suit property was a self-acquired property of suit property was a self-acquired property of suit property was a self-acquired property of the the the Sadashiv Samant. The concluded finding in the Sadashiv Samant. The concluded finding in the Sadashiv Samant. The concluded finding in the earlier earlier earlier suit is that the said Sadashiv Samant was suit is that the said Sadashiv Samant was suit is that the said Sadashiv Samant was the the the owner of the present suit property. owner of the present suit property. owner of the present suit property. 5.5.5. The original plaintiff is admittedly claiming The original plaintiff is admittedly claiming The original plaintiff is admittedly claiming through through through the plaintiff in Regular Civil Suit No. 1 the plaintiff in Regular Civil Suit No. 1 the plaintiff in Regular Civil Suit No. 1 of of of 1977. The respondents/defendants herein are 1977. The respondents/defendants herein are 1977. The respondents/defendants herein are claiming claiming claiming through 3rd defendant in the said earlier through 3rd defendant in the said earlier through 3rd defendant in the said earlier suit. suit. suit. In view of this admitted position, the In view of this admitted position, the In view of this admitted position, the appellate appellate appellate Court was right in holding that the suit Court was right in holding that the suit Court was right in holding that the suit was was was hit by the principles of res-judicata. hit by the principles of res-judicata. hit by the principles of res-judicata. 6.6.6. There is no merit in the appeal. The same is There is no merit in the appeal. The same is There is no merit in the appeal. The same is accordingly accordingly accordingly dismissed. dismissed. dismissed. 3 No No No order as to costs. order as to costs. order as to costs. (A.S.Oka, (A.S.Oka, (A.S.Oka, J) J) J)