1 CRA-786.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 786 OF 2011 Dattatraya Ramchandra Ghungurkar : Petitioner versus Madhukar Sakharam Palshivanekar & Anr. : Respondents. Shri P D Dalvi for the Petitioner Smt. Vaishali S Nimbalkar for the Respondent No.1. CORAM : R M SAVANT, JJ. DATE : 05th December 2011 P.C. 1 Revisional jurisdiction of this court under Section 115 of the Code of Civil Procedure is invoked to assail the order dated 22/4/2010 passed by the learned Civil Judge, Junior Division Gargoti, by which order the two Preliminary Issues have been answered by the said Court against the Defendants. 2 The suit in question i.e. the Regular Civil Suit No.13 of 2009 has been filed by the Respondents herein for partition, separate possession, declaration and perpetual injunction in respect of the land bearing Gat No.639 admeasuring 2 H. 69 R. In the said suit, the Plaintiff sought an injunction by stating that he is in joint possession and sought a declaration that the sale deed is void and hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. (for brevity sake herein after called as “The said Act”). 2 CRA-786.11.sxw 3 From the context of the present Revision, it is required to be noted that the cause of action pleaded was that the Defendant i.e. the Petitioner herein had entered into the suit land on 3/1/2009 and had threatened to carve out plots out of the said land. The Petitioner herein filed an Application under Section 9-A r/w Section 11 of the Cod of Civil Procedure and prayed for framing the Preliminary Issue as regards maintainability of the suit on the ground that the same is hit by the principles of constructive res-judicata. It was the case of the Petitioner/Defendant that the very same Plaintiff had earlier filed a suit being Regular Civil Suit No.82 of 1998 in respect of the same property for injunction, and for declaration that the sale deed in question executed in favour of the Defendant Nos. 1 and 2 being illegal and for possession of the very suit land. It was the case of the Petitioner/Defendant that the said suit was dismissed by holding that the execution of the sale deed is legal, which was done by accepting full consideration, and therefore, the said suit was dismissed with costs. According to the Petitioner/Defendant, the fresh suit i.e. Regular civil Suit No.13 of 2009 is hit by the principles of constructive res-judicata as the said suit is between the same parties and in respect of the same subject matter. Pursuant to the application filed by the Petitioner/Defendant two Issues came to be framed viz :- (1) Whether the suit is hit by the principle of constructive res-judicata? (2) Whether the suit is hit by the principle of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act.? 3 CRA-786.11.sxw As indicated above the said Issues have been answered against the Petitioner/Defendant and in favour of the Respondents/Plaintiffs. 4 In so far as the Issue of constructive res-judicata is concerned, the trial Court has observed that the earlier suit principally was filed for declaration that the sale deed executed in favour of the Defendant Nos.1 and 2 be declared as illegal, and therefore, the subsequent suit filed for partition on the basis of a different cause of action would not suffer on account of the application of the principles of constructive res-judicata. In so far as the application of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act is concerned, the trial Court was of the view that the Issue in that suit is as regards share of the respective persons who were parties to the suit and no question which arises under the said Act was falling for consideration in the fresh suit. The trial Court therefore on both the counts, answered the Preliminary Issues in favour of the Respondents/Plaintiffs. 5 Shri Dalvi, the learned counsel appearing on behalf of the Petitioner herein i.e. the original Defendant would contend that unless the Plaintiffs in the present suit had obtained leave under Order 2 Rule 2 or under Order 2 Rule 3 of the Code of Civil Procedure, the present suit was not maintainable. The learned counsel for the Petitioner would contend that the Plaintiffs ought to have prayed for all the reliefs in respect of the land in 4 CRA-786.11.sxw question in the earlier suit, and having not so prayed for the reliefs sought by the subsequent suit, the subsequent suit being Regular Civil Suit No.13 of 2009 is not maintainable. The learned counsel would contend that the principles of constructive res-judicata are directly applicable as the parties as well as the subject matter is the same. 6 Per contra, it is submitted by the learned counsel appearing for the Respondent No.1 herein i.e. the Original Plaintiff that the earlier Suit being Regular Suit No.82 of 1998 was occasioned in view of the sale deed executed in favour of the Defendant Nos.1 and 2 and the relief sought in the said suit was as regards declaration in respect of the said sale deed. There was no question of the Plaintiff applying for partition in the said suit. In view of the dismissal of the said suit, the Plaintiff has accepted the said position as regards legality of the said sale deed executed in favour of the Defendant Nos. 1 to. 2, and on that basis, he is now claiming partition of the property so that the property coming to the share of the Defendant Nos. 1 and 2 can be separated from the property which is coming to the share of the Plaintiff. The learned counsel would contend that the test for Order 2 Rule 2 of the Code of Civil Procedure is the cause of action. So far as earlier suit is concerned, the cause of action was the sale deed executed in favour of the Defendant Nos.1 and 2 whereas the cause of action in the instant suit is the threat given by the Defendants that they would come on the property and carve out the plots. In so far as the Issue arising under the Bombay Prevention of Fragmentation and 5 CRA-786.11.sxw Consolidation of Holdings Act is concerned, the suit is filed only for partition of the property, and there is no Issue which arises or which would come before authorities under the said Act, and therefore the said objection is of no avail. 7 Having heard the learned counsel for the parties, in my view, there is no merit in the above Revision Application. In so far as the earlier suit i.e. Regular Civil Suit No.82 of 1998 is concerned, the same was filed for a declaration that the sale deed executed in favour of the Defendant Nos. 1 and 2 be declared as illegal. In view of the fact that the said suit was dismissed, the Plaintiff has accepted the position as regards the legality of the sale deed and has filed fresh suit being Regular Civil Suit No.13 of 2009 for partition and separate possession of his share from the share of the Defendant Nos.1 and 2. The cause of action in the present suit arose when the Defendants threatened the Plaintiff that they would come and carve out the plots on the entire land, that was a cause, need or occasion to file a fresh suit. Hence though the parties and the subject matter is the same, the reliefs sought in the said two suits are different based on two distinct causes of action, and therefore Order 2 Rule 2 or Order 2 Rule 3 would not come in the way of the Plaintiff. In so far as bar of the said Act is concerned, admittedly for the reliefs sought, no Issue arises, which would arise for consideration before the authorities constituted under the said Act, and therefore the said objection in my view, as rightly held by the trial Court, is of no avail. 6 CRA-786.11.sxw 8 Having considered the impugned order passed, in my view, there is no error of jurisdiction committed by the trial Court in answering the Preliminary Issues raised on behalf of the Defendant. In that view of the matter, no case for exercise of revisional jurisdiction of this Court is made out. The above Civil Revision Application is accordingly dismissed. [R.M.SAVANT, J]