… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 42 OF 2009 1. Smt. Salima Bi wife of Sheikh Hussain, and daughter of Shaikh Kassim, major, married, presently residing at H.No.24. Near Banana Wholesale Market, Bhatulem, Panaji, Goa .. Appellant. Vs. 1. Patriarchate (Patriachad das Indias Orientais) or Mitra Through Right Reverend Patriarch, The Right Reverend Mgr. Raul Nicalau Gonsalves, represented by his duly constituted attorney, Rev. Fr. Roque Barreto, son of Late Alvaro Piedae Barreto, age 56 years, Procurator of Archdiocese of Goa and Daman, resident at Patriachal Palace, Altinho, Panaji, Goa. 2. Shri Shaikh Ibrahim Kassim, son of late Sheikh Kassim, major major, married, resident of House No.566, St. Inez, Panaji, Goa (since Deceased) through legal representatives 2(a) Shri Sheik Bashir Ahmad (son) 2(b) Smt. Firoza Bi Sheik Bashir (Daughter in law) 2(c) Shri Sheik Abdul Rab Ahmad (son) 2(d) Smt. Noorjahan Bi Adbul Rab Ahmad (daughter in law) … 2 … 2(e) Shri Sheik Gulzar Ahmad (son) 2(f) Smt. Aisha Bi Sheik Gulzar Ahmad (daughter in law) 2(g) Shri Sheik Nazir Ahmad (son) All the above residing at House No.566, St. Inez, Panaji, Ilhas, Goa. 2(h) Smt. Aisha Bi (daughter) 2(i) Shri Sheik Mohammad Nassir (son in law) Both residing at Islampura, Baina, Opp. Islampura Masjid, Vasco-da-Gama, Goa. .. Respondents Mr. M. S. Usgaonkar, Senior Advocate for the appellant. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondent Nos. 2 (a) to (i). CORAM :- A. P. LAVANDE, J. RESERVED ON : 31 st August, 2010. PRONOUNCED ON: 16 th September,2010 ORDER : By this appeal, the appellant takes exception to the judgment and order dated 3rd January, 2009 passed by the District Judge-II at Panaji in Regular Civil Appeal No.21/2006 dismissing the appeal against the judgment and decree dated 8th February, 2006 passed by the Civil Judge, J.D., D Court, … 3 … Panaji in Regular Civil Suit No.70/2001/D. 2. The appellant is the plaintiff and the respondents are the defendants in the above suit. The suit was filed for declaration, permanent injunction and other consequential reliefs in respect of the suit property. The suit was dismissed by the Trial Court. The Trial Court held that the plaintiff had not proved that the suit property was leased to Shaikh Kassim by way of contract of emphyteusis. The Trial Court also held that the sale deed executed between the defendant Nos. 1 and 2 was not null and void. The Trial Court further held that the suit was not filed within limitation and it was hit by the principle of res-judicata and also barred under Order II, Rule 2 of CPC. The Appellate Court concurred with the findings given by the Trial Court except that the Appellate Court held that the instrument dated 22nd March, 1934 was the document of emphyteusis. 3. The plaintiff had earlier filed Regular Civil Suit no.78/1997/B against the predecessor Shaikh Ibrahim Kassim, whose legal representatives are respondent Nos. 2(a) to 2(i), seeking restoration of rights in the property or in the alternative, directing the defendant to rectify the sale deed … 4 … dated 18th March, 1997 executed between Shaikh Kassim and Patriarchate. 4. The said suit was decreed by the Trial Court by the judgment and decree dated 30th August, 1999. The Appellate Court by judgment and decree dated 1st August, 2000 passed in Regular Civil Appeal No.100/1999 reversed the decree. The Appellate Court held that the suit property was governed by the decree No.43525. The appellate Court held that the plaintiff (the appellant herein) was not co-lessee in respect of the suit property and further held that the defendant (Shaikh Ibrahim Kassim) was in exclusive possession. Second Appeal No.4/2001 preferred by the plaintiff was dismissed by the learned Single Judge of this Court by an order dated 22nd March, 2001 at the stage of admission. No Special Leave Petition was preferred against the said order. 5. Mr. Usgaonkar, learned Senior Counsel appearing for the appellant submitted that after holding that the property was granted by way of emphyteusis, the Appellate Court could not have dismissed the suit. Learned Counsel further submitted that the findings given by the Appellate … 5 … Court on the aspects of the res-judicata, applicability of Order II, Rule 2 of CPC and that the suit was barred by limitation, are patently unsustainable in law. Mr. Usgaonkar took me through the records and submitted that the cause of action in the second suit filed by the appellant/ plaintiff was entirely different, and since no finding was given on merits in the earlier suit filed by the appellant herein or in the appeal preferred therefrom, the principle of res-judicata would not be applicable. Mr. Usgaonkar further submitted that even explanation IV to Section 11 of CPC would not be applicable. Learned Counsel further submitted that in the second suit, parties were not the same and the suit was very much within limitation, and insofar as the limitation is concerned, Section 14 of Limitation Act, 1963 is clearly applicable, and the Appellate Court had erred in holding that the suit was barred by limitation. In support of his submissions, Mr. Usgaonkar relied upon the following authorities : (i) (2004) 2 SCC 277; Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and others. (ii) AIR 1930 Madras 714; Amirchand Nagindas and Co. and Others Vs. Raoji Bhai Moli Bhai Patel and others. (iii) 1979 BCR 321; The State of Maharashtra and … 6 … others Vs. Glaxo Laboratories (India) Pvt. Ltd. and another. 6. Per contra, Mr. D'Costa, learned Senior Counsel appearing for the legal representatives of respondent No.2 submitted that the Appellate Court has rightly held that the second suit filed by the appellant/ plaintiff was barred by the limitation inasmuch as Section 14 was not attracted having regard to the facts and circumstances of the case. He further submitted that the Appellate Court has rightly held that the second suit was barred by the principle of res-judicata and, more particularly explanation IV to section 11 of CPC would be attracted since the plaintiff ought to have sought all the reliefs in the first suit by joining respondent no.1 in the said suit. He further submitted that on the same analogy, Order II, Rule 2 of CPC is clearly attracted in the present case as rightly held by the Appellate Court. Insofar as the finding given by the Appellate Court that declaration dated 22nd March, 1934 was a document of aforamento (emphyteusis) is concerned, the same is patently unsustainable in law inasmuch as in the earlier proceedings between the appellant and respondent No.2, the Appellate Court had clearly given a finding against the plaintiff, which had attained finality by … 7 … dismissal of second appeal filed by the plaintiff (appellant herein). Mr. D'Costa further submitted that the Lower Appellate Court after having given a finding that the second suit was barred by the principle of rej-judicata, could not have given finding that the said document is a document of emphyteusis contrary to the finding given by the Lower Appellate Court in the earlier suit filed by the plaintiff. Mr. D'Costa in support of his submissions, placed reliance on (2004) 2 SCC 277; Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and others, (1994) 4 SCC 53; P. K. Vijayan Vs. Kamalakshi Amma and others. 7. Having considered the rival submissions and having perused the record and the judgments relied upon by learned Senior Counsel appearing for the parties, I am of the considered opinion that no case has been made out by the appellant for admission of second appeal. The Appellate Court has rightly held that the second suit filed by the plaintiff was barred by limitation. In the suit, the plaintiff pleaded that the cause of action arose in the year 1988 and the Appellate Court further held that even if it is considered that the plaintiff came to know about the sale deed on 28th April, 1997, the suit filed in the year 2001 to … 8 … challenge the sale deed filed beyond the period of three years, was patently barred by limitation. I find no illegality having been committed by the Appellate Court. Having regard to the factual background, Section 14 of the Limitation Act would not be applicable. Therefore, the Trial Court as well as the Appellate Court were right in holding that suit filed by the plaintiff was barred by limitation. 8. Even in respect of the applicability of principle of res-judicata and more particularly explanation IV to Section Section 11 of CPC as contended by Mr. D'Costa and the applicability of Order II, Rule 2 of CPC is concerned, no fault could be found with the findings given by the Appellate Court. In the earlier suit filed, the plaintiff ought to have challenged the sale deed executed between the defendant Nos. 1 and 2, which was within the knowledge of the plaintiff. The plaintiff having not done so, could not have filed the second suit on the specious plea that the cause of action in the second suit was different. It is also pertinent to note that in the first proceeding the Appellate Court held that the plaintiff was not entitled to relief, inter alia, on the ground that the sale deed between the defendant Nos. 1 and 2 in the present suit was not challenged nor the defendant No.1 in the … 9 … present suit was made party. This finding has attained finality in view of the dismissal of second appeal filed by the plaintiff. Therefore, the principle of res-judicata more particularly explanation IV to Section 11 and Order II, Rule 2 of CPC is clearly attracted in the present case. I am unable to accept the submission of Mr. Usgaonkar that the cause of action in the second suit is different. Thus, in my considered opinion, on all the three aspects i.e. limitation, applicability of principle of res-judicata and Order II, Rule 2 of CPC, the Appellate Court was right in dismissing the appeal preferred by the appellant. 9. Insofar as the finding given by the Lower Appellate Court that the instrument dated 22nd March, 1934 was a document of aforamento (emphyteusis) is concerned, in the light of the finding on the above three issues against the appellant, it is not necessary for me to deal with the said aspect. However, even if the argument of the learned Counsel for the rival parties is considered on merits, I find lot of substance in the submission made by Mr. D'Costa that the Lower Appellate Court could not have given such a finding after holding that the second suit was barred by principle res-judicata. In the earlier appeal preferred by the … 10 … plaintiff (appellant herein). The Appellate Court had clearly negatived the contention of the appellant / plaintiff that the said document was of aforamento. The said finding had reached finality since the second appeal preferred by the appellant was dismissed. Therefore, the Appellate Court could not have given contrary finding thereby practically reversing the finding given by the Appellate Court in earlier proceeding between the appellant and the respondent No.2. 10. For the reasons aforesaid, I do not find any ground to entertain the appeal. No substantial question of law is involved in the present matter and consequently, the appeal is dismissed with no order as to costs. A. P. LAVANDE, J. SMA