1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 356 OF 2007 Keshav s/o Raghu Bhahirat & another .. APPELLANTS VERSUS Sow Dropadabai w/o Atmaram Dongre & others .. RESPONDENTS Shri Milind Patil, with Shri Nandkishor Yadav, Advocates for the appellants. Shri Gaddime, Advocate holding for Shri V.D. Gunale, Advocate for respondent nos. 1 to 6. ===== CORAM : R. M. BORDE, J. DATE : 22 nd September 2009 PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs claim declaration of ownership to the extent of 1/4 th share in the ancestral property as well as further claim that sale-deed executed by defendant nos. 4 to 6 in favour of defendant nos. 1 to 3 be declared as null and void and having no effect on the rights and entitlement of the plaintiffs in respect of his 1/4 th share in the property. Plaintiffs claim that the property 2 originally belonged to one Mahadu. He had three sons. Plaintiff no. 1 represents the branch of one Raghu, deceased son of Mahadu whereas defendants represent the branch of Tukaram, deceased son of Kashinath. Plaintiffs claim that the property being ancestral one, they have entitlement to the extent of 1/4 th share. 3 Defendants have controverted the contentions raised by plaintiffs contending that the property is acquired by Tukaram and is not the ancestral property. It was also contended by defendants that the suit is barred by principle of res-judicata. In an earlier suit presented by deceased Tukaram against one of the plaintiffs i.e. Keshav and some other defendants, specific finding has been recorded in respect of exclusive ownership and possession Tukaram, predecessor in title of defendant nos. 4 to 6. 4 Both the courts below have recorded finding against the plaintiffs and dismissed the suit as well as appeal presented by the plaintiffs. 5 I have perused the judgments recorded by both the courts below. It cannot be controverted that Tukaram, predecessor in title of defendant nos. 4 to 6 presented Regular Civil Suit no. 31/1963 against plaintiff Keshav 3 claiming decree of perpetual injunction restraining him from interfering in possession of the very property which is subject matter of the present litigation. In the suit issues were framed as A Whether plaintiff (Tukaram) proves his title and possession to the suit land ? B Do defendants prove that the suit land is the ancestral property of plaintiffs and defendant and that they are in joint possession of the said land ? . While dealing with Regular Civil Suit no. 31/1963, trial court has recorded finding that the plaintiff in the said suit i.e. Tukaram has established his title as well as possession over the suit property whereas defendant in the said suit i.e. keshav and others have failed to establish that the property is ancestral one and defendants are in joint possession thereof. Finding recorded by the trial court in Regular Civil Suit no. 31/1963 has been confirmed in Regular Civil Appeal no. 94/1964 decided by the District Judge, Beed on 7-9-1964. Appellate court while dealing with the appeal has recorded specific finding that “there was grant in favour of the plaintiff (Tukaram) without any indication in his representative capacity as manager. The grant should be construed in favour of the plaintiff and it can be his own independent acquisition.” The story of the defendants that they were in 4 joint possession of the suit property is turned down. In this view of the matter, as there is already finding recorded by the court of competent jurisdiction as regards the exclusive ownership of the property having vested in Tukaram, predecessor in title of defendant nos. 4 to 6, it is not open for the courts below to again enter into the question. Learned counsel for the appellant has further contended that certain further developments have not been taken into account by the trial court as well as the first appellate court. According to him, there was further partition of the suit property and the same has fallen in the share of the plaintiff. It is also worthy to be taken note of that plaintiff had instituted another suit being Regular Civil Suit no. 188/981 claiming decree of perpetual injunction against defendants raising the same contentions as those raised in the earlier suit. The suit was dismissed for want of prosecution. Application presented by plaintiff for restoration of the suit also came to be dismissed. In this view of the matter, the view adopted by the trial court which has been confirmed by the first appellate court considering the merits of the contentions raised by the plaintiff cannot be faulted. Reasons recorded by the courts below appear to be proper and do not call for any interference in exercise of jurisdiction under section 100 of the Code of Civil procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa356.07.odt