1 S.A.No.181/09. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.181 OF 2009. Eknath Shankar Sonawane and another ... Appellants. Versus Smt.Saroj Eknath Sonawane ... Respondent. ... Mr.M.M.Bhokarikar, advocate for the appellants. Mr.S.S.Kulkarni, advocate holding for Mr.V.T.Choudhari, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,JJ. Date : 04.02.2011. PER COURT 1. This is defendant's Second Appeal. The present Respondent/original plaintiff had filed a suit for mandatory and perpetual injunction. The 2 S.A.No.181/09. trial Court decreed the suit. The defendant preferred the appeal. The appellate Court confirmed the finding of the trial Court and dismissed the appeal. The defendant has assailed the said judgment in the present Second Appeal. 2. Mr.Bhokarikar, learned counsel for the appellant very strenuously contended that both the Courts below have not considered the fact that the plaintiff does not have any right over the property as she is no longer the wife of the defendant. When the plaintiff is not the member of the family of the defendant and she is divorced, she can not claim any right in the property. So also can not claim injunction against the defendant who is the true owner. For the said purpose the learned counsel relies on the judgments of the Apex Court and this Court reported in "Premji Ratansey Shah and others Vs. Union of India and others" 1995(2) Bom. C.R.374, "Suman Ramchandra Shetye (Smt.) Vs. Ramchandra Sakharam Shetye" 1989 (2) Bom.C.R. 122, "Arun Laxmanrao Navalkar V. Meena Arun Navalkar" AIR 2006 Bombay 342. 3 S.A.No.181/09. 3. Mr.Bhokarikar, learned counsel further contends that the present suit is also hit by the principles of res-judicata inasmuch as the finding has been arrived at up to the Apex Court that the plaintiff is not the wife of the defendant and in view of principle of res- judicata, the judgment delivered by both the Courts are erroneous. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Sajjadanashin Sayed Md.B.E. Edr. (D) L.Rs., Vs. Musa Dadabhai Ummer and others" AIR 2000 Supreme Court 1238 and judgment in a case of "Ramchandra Dagdu Sonavane (Dead) by L.Rs. and others Vs. Vithu Hira Mahar (Dead) by L.Rs. and others" AIR 2010 Supreme Court 818. 4. Mr.Bhokarikar, learned counsel contends that there are concurrent findings of facts, still, the said facts are perverse and are not in consonance with the evidence on record and as such this Court can entertain the Second Appeal as the judgments are based on no evidence and there are perverse findings. For the said 4 S.A.No.181/09. purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Kashmir Singh Vs. Harnam Singh and another" AIR 2008 Supreme Court 1749. 5. Mr.Bhokarikar, learned counsel submits when the finality has been attached by way of judgment and order delivered by the Supreme Court then the Courts below could not have entertained the present suit. Even the Apex Court has passed a judgment, wherein it is held that the present plaintiff would not get any right in the property and also will not have any right of alienation. According to Mr.Bhokarikar, the Courts below have not at all considered the impact of said judgment on the present proceedings. 6. Per contra, Mr.Kulkarni, learned counsel for the Respondent submits that both the Courts on appreciation of evidence have come to just conclusion. Though the plaintiff does not have right of ownership over the said property, she has been granted right of residence which is substantiated by the judgment of the Apex Court 5 S.A.No.181/09. and right to residence would include right to unobstructed, unhindered residence. 7. With the assistance of the learned counsel, I have gone through the judgments delivered by both the Courts. The principle laid down by the Apex Court regarding the scope of the Second Appeal and the powers of this Court to entertain a Second appeal if the judgment is based on perverse findings or on no evidence does not require any debate. So also the principle of res-judicata are well established. The matters directly and substantially in issue in earlier proceedings would operate as res-judicata in the present proceedings. The judgments referred by Mr.Bhokarikar, lay down the same principle. Regarding the arguments of Mr.Bhokarikar, that the plaintiff is a divorcee and now no longer a wife and as such would not be entitled to claim any right in the property as member of the family would also not require any debate but the fact is that the Apex Court has itself accepted the right of the present plaintiff of residence in the said room and as the plaintiff has been 6 S.A.No.181/09. given a right of residence, the right of residence would mean peaceful residence, unobstructed by any impediment. 8. Both the Courts have concurrently held that by erection of an iron gate, the right of the plaintiff is being invaded and obstructed and as such have passed a decree of injunction. 9. The Courts below have discussed the evidence in this regard and have come to the concurrent conclusion. The view taken by the Courts below is a possible view. The Second Appeal can not be entertained only on the ground that the other view is also possible. 10. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa18109 7 S.A.No.181/09.