1 S.A. 101/1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 101/1992 Hari Manohar Aute, Age : 45 years, Occu. Agriculture, R/o Tembhurni, Taluka : Jafrabad, District : Jalna. ...Appellant. (Original Plaintiff) Versus Fakirchand Eknath Salve, Deceased per L.Rs. (a) Motiram Fakirchand Salve, Aged : 40 years, Occu. Agriculture, R/o Tembhurni, Taluka : Jafrabad, District : Jalna. (b) Prakash Fakirchand Salve, Aged : 28 years, Occupation : Agriculture, R/o Tembhurni, Taluka : Jafrabad, District : Jalna. (c) Janabai w/o Baburao, Aged : 45 years, Occupation : Household, R/o Anwa, Taluka : Bhokardan, District : Jalna. (d) Manabai w/o Ganpatrao, Aged 43 years, Occupation : Household, R/o Phulambri, Taluka & District : Aurangabad. (e) Chandrakalabai w/o Purushottam Pangarkar, Aged : 35 years, Occupation : Household, R/o Polas Galli, Kaderabad, Jalna, District : Jalna. (f) Hirabai w/o Digambar Domle, Aged : 34 years, Occupation : Household, R/o Sawargaon Dukre, Tq. Chikhali, District : Buldhana. 2 S.A. 101/1992 (g) Sarlabai w/o Krishna Raut, Aged : 33 years, Occupation : Household, R/o Tendulwadi, Tq. Gangapur, District : Aurangabad. (h) Shakuntala w/o Ratan Bujade, Aged : 22 years, Occupation : Household, R/o Walse, Tq. Bhikardan, District : Jalna. ...Respondents. Mr. S.S. Bora, Advocate for the appellant. Respondents absent. CORAM : A.V. NIRGUDE, J. DATED : 18th July, 2011. ORAL JUDGMENT: 1 The respondents are served but they are absent. This appeal is filed against the judgment and order passed by II Additional District Judge, Jalna in Regular Civil Appeal No.120/1985. Regular Civil Appeal No. 120/1985 had arisen from the judgment and decree passed in Regular Civil Suit No. 324/1982. It was appellant’s suit and it was decreed. The learned II Additional District Judge, Jalna modified the decree to such a extent that the appellant / plaintiff had almost lost the suit. 2 This litigation has a chequered history. It is common ground that lands bearing Survey No. 28 and 29 were given block No. 97 in consolidation scheme. One Dagdu Rajaram was the owner of this land. The proceedings were initiated under the Maharashtra Agricultural Lands Ceiling and holding Act, 1961, against Dagdu Rajaram and it was found that he was possessing surplus land. It is 3 S.A. 101/1992 the case of the appellant / plaintiff that the land block No. 97 admeasured about 46 acres. The respondent Fakirchand was then landless person, was given 5 acres 30 gunthas land out of Block No. 97. This piece of the land was lying on the south side of the land and to the north of such portion, there was an old well. It is his case that Fakirchand after taking over the land so given to him encroached on other part of the block. He encroached the land which was laid on the north side of the old well to such extent that he occupied almost six more acres land further. It is thus his case that besides the allotted land to the extent of 5 acres 30 guntha, which laid to the south of the old well, Fakirchand took control and possession of almost 6 acres and 30 gunthas land, which laid on the north of the old well. He said that this land still belonged to Dagdu the original owner. He said that he purchased one acre land which is laid adjacent to the well on the north side. He placed on record the sale deed which he was obtained from Dagdu. 3 Though the appellant purchased this land, he could not get possession of the land because as said above, Fakirchand was already occupying the same as encroacher. He therefore, filed the present suit for recovery of possession of the land described in the sale deed. He specifically asserted that the respondent Fakirchand was in unauthorised occupation of the same. The learned judge of the trial Court accepted this case. 4 The reason why this case was accepted, was quite peculiar. In the year 1997, Fakirchand had filed a suit for perpetual injunction against the present appellant. This was numbered as Regular Civil Suit No. 123/1979. Respondent Fakirchand asserted in that suit that 4 S.A. 101/1992 the area lying on the northern side of the old well was the land, which he was given by the Government authority under Ceiling Act. The present appellant who was then the defendant contesting this case, asserted that the land given to respondent Fakirchand, laid on the southern side of the old well. The Court then decided as to which portion of block No. 97 was allotted to the respondent Fakirchand. After recording evidence in that suit, the learned judge of the trial Court held on facts that respondent Fakirchand could lay his claim only to the extent of 5 acres 30 gunthas land, which lay to the south of the old well. The learned judge also held that beyond the allotted land, described above, if respondent Fakirchand was found in possession, the same was encroachment. Therefore, respondent Fakirchand’s suit was dismissed. This judgment in Regular Civil Suit No. 123/1979 still holds the field between the parties, because respondent Fakirchand did not challenge this judgment in appeal. The learned judge of the trial Court in the present suit, on the basis of the finding recorded in earlier suit, could easily hold that the suit land described in the plaint, could not have been the land allotted to respondent Fakirchand. He specifically held that in view of the finding recorded between the parties by the competent Court they operate as res judicata and even he would not be permitted to take any other view and would follow the finding recorded earlier between the parties. 5 Respondent Fakirchand filed Regular Civil Appeal No. 120/1985. Respondent Fakirchand challenged this judgment in the first appeal. The learned judge of the first appellate Court, practically ignored the plea based on the principle of res judicata, raised by the present appellant. At one place, in his judgment in para 13 and 14, he 5 S.A. 101/1992 referred to the argument of the appellant that the finding recorded in Regular Civil Suit No.123/1979 would have effect of res judicata but he did not discuss reasons as to why he would not follow the finding so recorded. 6 So a substantial question of law would arise "whether the learned judge of the first appellate Court erred in ignoring the finding recorded between the parties on the relevant issues by a competent court in a previously filed suit? 7 It appears that the learned judge of the first appellate Court, took a different view on facts, as if he was examining the correctness of the finding recorded in Regular Civil Suit No. 123/1979. I have no difficulty in accepting the argument of the appellant that whatever happened between the parties in the previous suit, would bind them in the next suit in as much as even the court would not be able to examine correctness of the finding recorded in the previous suit. But the ld. judge of the first appeal court did not even discuss this relevant issue between the parties. He thus committed gross error of law while writing the impugned judgment. 8 The learned judge of the first appellate Court also criticized and set aside finding of the learned judge of the trial Court saying that the learned judge of the trial Court could not have referred to a map/location sketch annexed to the plaint. He said that such location sketch was drawn by the layman and was therefore, useless for locating the suit land etc.. The location sketch in fact throws proper light on the disputed question on fact, if read in juxtaposition of the finding recorded in Regular Civil Suit No.123/1979. In short, the finding recorded in earlier suit, makes it clear that the appellant/ 6 S.A. 101/1992 plaintiff would be able to obtain the relief of possession also. Such a relief could have been sought in the previous Regular Civil Suit No. 123/1979 also. Had he sought such relief properly, he would have succeeded in getting such relief. However, he was not precluded from filing a fresh suit for possession. 9 While discussing evidence, the learned judge who decided Regular Civil Suit No.123/1979 clearly recorded a finding that the land which the appellant purchased from Dagdu, was already in wrongful possession of respondent Fakirchand. I think, the appellant initially committed error in filing the suit only for perpetual injunction. He rightly but subsequently changed the payer clause in the suit for seeking possession of his land. The appeal should therefore, succeed. ORDER The appeal is allowed. The judgment and decree passed by the learned judge of the first appellate court stands set aside and judgment and decree passed by the learned judge of the trial Court in R.C.S. No.324/1982 is confirmed. [A.V. NIRGUDE,J.] ts k/2011/July18/sa101.92/ok