1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 498 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. A.M.Gholap, Advocate for the appellant. Mr. N.K.Tungar, Advocate for respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/09/2010 PER COURT : 1. This is defendant no. 1’s Second Appeal. The plaintiff has filed Suit seeking relief of injunction against the present appellant / original defendant. The said injunction is in respect of the suit property admeasuring 4 Acres 18 R. The trial Court held that the plaintiff has proved his possession to the extent of 4 Acres land, but on the ground that the earlier Suit bearing R.C.S. No. 212 of 1987 was dismissed in default and that would operate as res-judicata within the meaning of Section 11 of the Code of Civil Procedure had dismissed the Suit. The plaintiff preferred Appeal. The appellate Court allowed the said Appeal partly and clamped injunction in respect of 4 Acres land. The defendant has assailed the said Judgment in Second Appeal. 2 2. Mr. Gholap, the learned counsel for the appellant contended that when the parties had arrived at compromise and the compromise decree was in R.C.S. No. 103 of 1971, the plaintiff did not have any cause of action to institute the present Suit. Mr. Gholap has further submitted that R.C.S. No. 212 of 1987 was filed by the plaintiff for the same relief, wherein the parties were also the same and the said Suit came to be dismissed in default. As such, the said dismissal would tantamount to the adjudication inter-alia the present Suit would be barred in view of Section 11 of the Code of Civil Procedure. 3. With the assistance of the learned counsel for the parties, I have gone through the Judgment and also the compromise decree in the earlier proceedings. In the said compromise decree, the injunction was not clamped against the present appellant. More over, the trial Court who had dismissed the Suit, also specifically came to the conclusion that the plaintiff has proved his possession over 4 Acres of land. The appellate Court also found the plaintiff to be in possession of 4 Acres of land and had clamped injunction only to the extent of 4 Acres. The cause of action to institute the Suit for perpetual injunction is the cause of action “ de die in diem ”. 4. In an earlier Suit in R.C.S. No. 103 of 1971, no injunction was claimed nor it was prayed in the compromise between the parties. The said 3 Suit R.C.S. No. 212 of 1987 for injunction was dismissed in default. There was no adjudication on merit. The issue was not effectively and finally adjudicated. In such circumstances, Section 11 of the Code of Civil Procedure would not be attracted. 5. In light of the above, no error can be found in the Judgment passed by the lower court. The Second Appeal being sans substantial question of law is dismissed with no order as to costs. 6. In view of dismissal of Second Appeal, the Civil Application does not survives and as such disposed of. [ S.V. GANGAPURWALA ] JUDGE knp/SA 498.10