IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 434 OF 2007 WITH CIVIL APPLICATION NO. 270 OF 2006 Digambar Krishna Ingale ... Appellant Vs Dada Dattu Ingale & Ors. ... Respondents Mr. S. D. Patil, for the Appellant. Mr. Surel S. Shah, for the Respondent No.1. CORAM: A. P. DESHPANDE, J. DATED: JANUARY 27, 2009. P.C.: ---- . Heard. The respondents / purchaser’s predecessor in title had filed Regular Civil Suit No. 211 of 1976 wherein the appellant/plaintiff, was the defendant. A decree for partition was passed and the parties were placed in separate possession. The present appellant has received 1/3rd share in the decree passed in the said suit. At a later point of time, the present appellant/plaintiff instituted the present suit, contending that in the earlier suit bearing R.C.S. No. 211 of 1976 the then plaintiff had shown an incorrect geonolgy and thereby misled the Court. It is also case of the present appellant that the respondents are not the legal heirs but someone else are the legal heirs. It is not really case of - 2 - the appelant that the decree was obtained by the respondent in the earlier suit by playing fraud. The case of the appellant is that a wrong geneologial tree was given by the plaintiff in that suit and the same was acted upon by the Court. This is not a case of fraud, as contended by the learned counsel for the appellant. Both the Courts below have concurrently held that present suit is barred by principles of resjudicata, inasmuch as the matter was directly and substantially in issue in the earlier suit and the subject suit are between the same parties and the parties litigating under the same title. Having found that the parameters of Section 11 of C.P.C. are squarely satisfied, a finding of resjudicata has been recorded. 2. It will not be out of place to mention that present appellant had disputed geneology set out in the earlier suit. However, an adverse finding came to be recorded. Thus, in my view no case of fraud is made out. The learned counsel for the appellant has placed reliance on the decision of the Apex Court, in the case of Madhukar & Ors Vs. Sangram & Ors. Madhukar & Ors Vs. Sangram & Ors. Madhukar & Ors Vs. Sangram & Ors. [(2001) 4 Supreme Court Cases 756] [(2001) 4 Supreme Court Cases 756] [(2001) 4 Supreme Court Cases 756] to contend that as the first Appellate Court has not properly dealt with the issues, in regard to the fraud, the matter needs to be remanded to the Court below. The Supreme Court - 3 - in the said judgment was dealing with the exercise of jurisdiction by the first Appellate Court and in that context made the observations in paragraph 5, which are relied upon by the learned counsel for the appellant. The case in hand is the Second Appeal unless and untill substantial question of law emerges for adjudication, the Second Appeal cannot be admitted. Having regard to the provisions of section 100 of Civil Procedure Code, In the above referred set of facts, I am of the clear view that though the judgment of the first Appellate Court fails to record elaborate reasons for rejection of the grounds, raised by the appellant; it is not a ground to remand the matter for the re-trial or re-hearing. In the result, there being no merit in the appeal, same is accordingly dismissed. 3. In view of dismissal of the appeal Civil Application No. 370 of 2006 is diposed of, as the same is rendered infructuous. Sd/- [ A. P. DESHPANDE, J.]