1 Second Appeal No. 646.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.646 OF 2004 Manku Bhaga Patil .. APPELLANT VERSUS Pandurang Baburao Patil & others ...RESPONDENTS ... Shri V.T. Choudhary, Advocate for the appellant Shri Vinod P. Patil, for respondents CORAM : S.V. GANGAPURWALA, J. DATE : 6th December, 2010. PER COURT : This is plaintiffs Second Appeal. The plaintiff had filed a suit for declaration and injunction contending that he has perfected right of way by prescription and for injunction restraining the defendants from obstructing in the use of said way. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court confirming the Judgment and Decree passed by the trial Court dismissed the appeal. The plaintiff has assailed the Judgment and Decree in the present Second Appeal. 2 Second Appeal No. 646.10 2. Shri V.T. Choudhary, learned Counsel for the appellant contended that the Courts below have dismissed the suit solely on the ground of res-judicata. In fact, the issue of res-judicata would not be involved, as the earlier suit was for simplictor injunction and the present suit is for the relief of declaration and injunction. The learned Counsel further submitted that the earlier suit was dismissed on the ground that the relief of declaration was not claimed. As such, there was no impediment for the Courts below to decide the present suit on merits. 3. Per contra, Shri Patil learned Counsel for the respondent submitted that both the Courts below concurrently came to the conclusion that the suit of the plaintiff was barred in view of Section 11 of Civil Procedure Code. The Courts have taken into consideration the pleadings, issues involved in the earlier suit and have rightly dealt with the issue. 4. With the assistance of learned Counsel 3 Second Appeal No. 646.10 for the respective parties I have gone through the judgments passed by both the Courts below. There is no doubt that earlier the plaintiff had filed Regular Civil Suit No. 122 of 1979 for injunction regarding as suit way. The present suit way was the subject matter of the dispute in the earlier suit. The Court dealing with the said suit had specifically framed an issue “whether the plaintiff proves that he has right to go by the way as alleged in the plaint towards his field and he has acquired right of way by prescription”. The same relief is claimed in the present suit. In the said earlier suit the Court had observed that the plaintiff has failed to prove the said right of way and in addition had also held that the suit also fails as relief of declaration is not sought. As such, in the previous suit Competant Court on merits had held that plaintiff could not prove his right of easement. As the decision in the earlier suit was on merit and by competant Court and the matter in issue involved in the present suit was also directly and substantially in issue in the previous suit, the same operates as res-judicata. 4 Second Appeal No. 646.10 5. In the 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] JUDGE SDM* 646.04SA/61210