1 AO 53 OF 2005 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.53 OF 2005 (With C.A.Nos.7525/2005 & 16537/2010) 1. Govind s/o Bhagwanrao Deshmukh, age: 66 years, Occ. Agri., r/o Walwandi, Tq. Beed. 2. Ganpat s/o Bhagwanrao Deshmukh, Age 63 years, occ. Service, Z.P., r/o Beed. 3. Pralhad s/o Bhagwanrao Deshmukh, Age 60 years, Occ. Service in Panchayat Samiti Office, Beed. 4. Laxman s/o Bhagwan Deshmukh, Age 57 years, Occ. Private Service, r/o Peth Beed, Dist. Beed. 5. Suresh s/o Bhagwan Deshmukh, Age 52 years, occ. Education, r/o. as above. 6. Ganga w/o Trimbakrao, Age 73 years, Occ. Household, r/o Tambawa, Tq.Kaij, Dist. Beed. ...APPELLANTS (Orig.Defts. 4 to 9) VERSUS 1. Rupla s/o Megha Rathod, Laman, (deceased) through her Legal Representatives: 1. Sitabai w/o Rupla Rathod, Age 70 years, occ. Household, r/o. Nalwandi, Tq. & Dist. Beed. 2 AO 53 OF 2005 2. Tikaram s/o Rupla Rathod, Age 55 years, Occ. Agri., r/o as above. 3. Manik s/o Rupla Rathod, Age: 50 years, occ. & r/o as above. 4. Dinkar s/o Rupla Rathod, Age: 48 years, Occ. & r/o as above. 5. Namdev s/o Rupla Rathod, Age: 45 years, occ. & r/o as above. 6. Vishnu s/o Rupla Rathod, Age: 43 years, occ. & r/o as above. 7. Sham s/o Rupla Rathod, Age: 40 years, occ. & r/o as above. 8. Anusaya w/o Ganesh Pawar, Age: 39 years, occ. Household, r/o as above. 9. Janabai w/o Devsing Chavan, Age : 35 years, occ. Household, r/o as above. (Respondent No.1 (Org.Pltffs.) 2. Shrimant s/o Shahurao Deshmukh, (Deceased) through his legal representatives: 1. Smt.Latabai w/o Shrimantrao Deshmukh, Age Major, Occ. Household, r/o Wadwani, Tq. Majalgaon, Dist. Beed. 2. Satish s/o Shrimantrao Deshmukh, r/o Wadwani, Tq. Majalgaon, Dist.Beed. 3 AO 53 OF 2005 3. Kiran s/o Shrimantrao Deshmukh, r/o Wadwani, Tq. Majalgaon, Dist. Beed. 4. Vijaya w/o Krishnarao Bhale, occ. Household, r/o Padegaon, Khultabad Road, near Quadri Hospital, Dist. Aurangabad. 5. Nanda w/o Shripatrao Mali, Occ. Household, r/o Near Babasaheb Ambedkar Chowk, Sailu, District Parbhani. 6. Minakshi w/o Pradiprao Mulay, Occ. Household, r/o Majalgaon, Dist. Beed. 7. Chanda w/o Sanjayrao Joshi, Occ. Household, r/o Ahmednagar, Dist. Ahmednagar. 3. Parwatibai w/o Shahurao Deshmukh, Age: 70 years, occ. Household, r/o Wadwani, Tq. Majalgaon, Dist. Beed. 4. Shantabai w/o Prabhakarrao Deshmukh, Age 50 years, Occ. Household, r/o Rajapur, Tq. Georai, Dist.Beed. ....RESPONDENTS (Org.Defts.) ... Mr. S.P.Deshmukh, Adv., for the appellant. Mr. A.N.Nagargoje, Adv., for R.1/1 to 1/9. Respondent nos. 2(1) to 2(4), 3 & 4 served. ... 4 AO 53 OF 2005 CORAM: K.U.CHANDIWAL, J. DATE:2/12/2010 *** PER COURT : 1. Heard. 2. The appeal was admitted on 24th Jan., 2006, by formulating following substantial question of law: " Whether first appellate Court, while dealing with Regular Civil Appeal No. 169/1996, sit over the judgment of first appellate Court, delivered in Regular Civil Appeal No.201/1983 ?" The other three substantial questions of law referred by this Court were, indeed, ground nos. XI, XIII, and XIV, which are reproduced as under: "XI. Learned Judge of lower appellate Court has missed out provision contained in Section 11 wherein ground/reason which ought to be taken out has not been taken cannot form basis for subsequent matter. ..... .... XIII. Learned Judge ought to have appreciated that as in earlier round of litigation as the previous suit the subsequent suit of 1978 had been dismissed. In the Regular Civil Appeal filed against dismissal of suit, the matter had been remanded to decide preliminary issue of resjudicata after 5 AO 53 OF 2005 allowing parties to have opportunity of hearing. XIV. Learned Judge has in fact held that sufficient opportunity had been made available to the respondents in respect of their case for evidence and hearing." 3. A long drawn chequered history of litigation is presented. An impression is generated that a litigant in possession of property, to squeeze right of a purchaser of the property, can go to any extent and keep the litigation alive for decades together. 4. RCS No.260/1966 was moved by respondent, faced dismissal, he lost appeal also. Subsequent suit moved by the respondent, being RCS No.97/1978, had a brunt from the petitioner by an application Exh.69 seeking to decide the issue of res judicata. The respondent lost RCS No.97/1978. In the appeal ( RCA No.201/1983), the learned Additional District Judge again directed to decide issue No.5 relating to res judicata and consequent upon such directions below Exh.1, the learned Judge has dealt the issue No.5 as a preliminary issue based on application Exh.69 and dismissed the suit by order dt.30th August, 1996. This order was questioned by the respondent in Regular Civil Appeal No.169/1996 and the learned District Judge, on evaluating all the aspects in the 6 AO 53 OF 2005 matter and legal position, reached to the conclusion that mere decision on the point of res judicata by itself was not sufficient and it was expected by the Court of first instance to decide all the issues and, consequently, directed re- hearing of the suit being RCS No.97/1978 by judgment dt.20.4.2005. 5. The observations of the learned District Judge in remanding the matter are spelt out in paragraph no.7. He has given reference to the judgment of the Apex Court reported in AIR 1980 SC 1201 and also referred to the judgment of this Court AIR 1972 Bombay 228. The findings recorded by the learned first appellate Court, in remanding the matter, could not be branded that it has exceeded its jurisdiction by sitting in appeal over the decision of earlier District Judge in RCA No.201/1983. 6. RCA No.201/1983 was restricting to the point of jurisdiction as to res judicata in terms of Exh.69 as it did not ponder upon any other issues between the parties litigating. As stated earlier, based on observations in RCA No. 201/1983 to decide preliminary issue first the learned Judge passed order below Exh.1 which has caused miscarriage to the respondent herein as the events between the litigants flowing in RCS No.260/1966 and the subsequent suit RCS No. 7 AO 53 OF 2005 97/1978 were required to be considered on its own merits which has been lost track of. Both the cases were projecting different situations to be considered, though property may be one. 7. The factual matrix even if it is not expected to be thought upon, however, it warrants that the stand in earlier case and the subsequent development getting the rights of the petitioner herein negated by the Revenue Authorities was also required to be considered. 8. In the set of above situation, I do not see any error on the part of the learned Additional District Judge, Beed, in remitting the matter. The substantial questions of law referred here-in-above would not come to the assistance of the petitioner/appellant. They are answered in the negative. Appeal From Order dismissed. No costs. The observations are prima facie in nature. Considering the age of the matter and of the parties, learned Judge seized with RCS No. 97/1978, shall expeditiously dispose of the same within six months of receiving the writ, without affording any unnecessary accommodation to the litigants. Civil Applications disposed of. (K.U.CHANDIWAL) JUDGE agp/53-05 ao