1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.870 OF 2001 Tukaram Namu Mudugade and others : Appellants versus Vihar Nilkanth Deshpande & others : Respondents. Shri.S. M. Kamble for the Appellants. Shri N. V. Bandiwadekar for Respondent Nos.4 and 5. CORAM : R.M.SAVANT, J. DATED : September 09, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 25/6/1998 passed by the learned Ivth Additional District Judge, Kolhapur by which the Judgment and Decree dated 31/1/1991 passed by the trial Court i.e the learned Civil Judge, Junior Division, Malkapur came to be confirmed. 2 2. The Appellants are the original Defendants in Regular Civil Suit No.43 of 1981 filed by the Respondents herein, who are the original Plaintiffs, for injunction in respect of suit property being Gat Nos.6, 9 ,46, 45, 44, 49 and 48. It was the case of the Plaintiffs that the suit property was surrendered to them by the Defendants who were earlier the tenants of the suit property. The said surrender was pursuant to the Tenancy Case No.13 of 1969 which ultimately reached this Court by way of Special Civil Application No. 1724 of 1980 which culminated in the order dated 10.12.1980 passed by this Court and pursuant to which the Kabje Patti was executed by the Circle Officer in favour of the Respondents herein on 20/5/1981. Since the Defendants were obstructing the possession of the Plaintiffs, that the said suit came to be filed by the Plaintiffs. 3. The Defendant Nos.3 to 7 did not file their written statement. However, the Defendant Nos.1, 2, 5 and 10 filed their written statement and denied the Plaintiffs' case. They denied that the tenancy was ever terminated. They also denied that the Circle Officer on 20/5/1981 had handed over the possession of the suit property to 3 the Plaintiffs. They also denied that they had obstructed the Plaintiffs. The said Defendants contended in their written statement that the Plaintiffs by joining the hands with Talathi had hastily obtained possession of the suit land. The said Defendants also relied upon the order dated 16.8.1979 passed by this Court in Special Civil Application No.1924 of 1974 whereby this Court had upheld the Defendants' tenancy right. 4. The parties went to trial. The trial Court on the basis of the oral as well as the documentary evidence and also taking into consideration the order dated 10.12.1980 passed in Special Civil Application No.1724 of 1980 and the order dated 16.8.1979 passed in Special Civil Application No.1924 of 1974 recorded a finding that the Plaintiffs were in possession of the suit property and also recorded a finding that since the Defendants were obstructing the possession of the Plaintiffs, the reliefs claimed in the said suit were required to be granted and accordingly the trial Court decreed the said suit. The trial Court, in so far as the order dated 16.8.1979 is concerned, observed that this Court had not disturbed the finding as regards surrender of 4 the suit land by the Defendants which was recorded in the order dated 10.12.1980. 5. Being aggrieved by the said Judgment and Order of the trial Court, the Defendants carried the matter in appeal by filing Regular Civil Appeal No.116 of 1991. The Lower Appellate Court also confirmed the finding recorded by the trial Court as regards the possession of the Plaintiffs. Both the Courts below therefore have concurrently held as regards the possession of the Plaintiffs and obstruction to the same by the Defendants. 6. Both the Courts below have recorded findings of fact on the basis of the material which was before them. In my view, exercise of jurisdiction under Section 100 of the Code of Civil Procedure is not warranted. 7. It was sought to be contended that though the plea of res- judicata had been raised in view of filing of the earlier suits being Regular Civil Suit Nos.7 of 1972 and 8 of 1972, both the Courts below 5 had not dealt with the said Issue. In the light of the Issue framed by the trial Court being Issue No.2 and the finding recorded thereon, in my view, the said submission is mis-founded. 8. Hence the challenge raised in the above Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. [R.M.SAVANT, J]