1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 309/2010 (Shrikrishna Rajaram Isal & others VERSUS Manohar Narayanrao Ambarte & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.R. Deshpande, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 20, 2010 . Heard. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that the defendant no.1 was a trespasser in the suit property and had also claimed damages. The plaintiffs are the legal heirs of one Rajaram, who was initially a tenant of the agricultural land. After the death of the original tenant, his legal heirs i.e. his widow Panchafulabai/defendant no.2 and the plaintiffs became the owners of the suit land. The property was purchased in the name of Panchafulabai. The defendant no.2 Panchfulabai sold a part of the property purchased by the parties to the original defendant no.1 on 10.06.1981. The plaintiffs, the sons and daughters of Rajaram, pleaded that they were the owners of the suit property and their mother 2 had no right to sell a part of the property which was purchased in terms of the order of the tenancy Courts to the defendant no.1. The plaintiff pleaded that the defendant no.1 was a trespasser and was liable to pay damages to the plaintiffs. The plaintiffs pleaded that the transaction was hit by the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1948 and, hence, was void. The defendant no.1 denied the claim of the plaintiff and pleaded that he had purchased the property from mother of the plaintiff as early as on 10.06.1981 and the present suit was filed in the year 1998. The defendant no.1 pleaded that the mother of the plaintiffs, Panchafulabai, had filed Regular Civil Suit No.380/1988 against the defendant no.1 for a declaration that the sale-deed executed by her in favour of defendant no.1 on 10.06.1981 was void. The suit filed by Panchafulabai was, however, dismissed by the trial Court. Regular Civil Appeal No.291/1996 filed by Panchafulabai against the judgment passed by the trial Court was also dismissed. The judgment in R.C.S. No.380/1988, according to the defendant no.1, had attained finality and the plaintiffs had no right to file the suit simplicitor for a declaration that the defendant no.1 was a trespasser. The 3 defendant no.1 sought for the dismissal of the suit as the question of the applicability of the provisions of Section 57 of the Act of 1948 was considered in R.C.S. No.380/1988 and was answered against Panchfulabai. The defendant sought for the dismissal of the suit. Both the Courts, on an appreciation of the material on record, held that the suit filed by the plaintiffs for a declaration that the defendant no.1 was a trespasser and for damages was liable to be dismissed. Both the Courts concurrently held that the property was sold to the defendant no.1 by Panchfulabai on 10.06.1981 and the suit was instituted by the plaintiffs in the year 1998 after R.C.A. No.288/1996 filed by Panchafulabai against the judgment in R.C.S. No.380/1988 was dismissed. The Courts held that the issue of applicability of Section 57 of the Act of 1948 was already decided by the competent civil Court and the plaintiffs therefore, could not have sought a contrary finding by filing a suit in the year 1998 after a suit filed by their mother was dismissed and the judgment had attained finality. On hearing the learned counsel for the appellant and on perusal of the judgments passed by both the Courts, it appears that the Courts were perfectly justified 4 in dismissing the suit of the plaintiffs. Though the plaintiffs had tried to show that they were merely seeking a declaration that the defendant no.1 was a trespasser, in effect, the plaintiffs were seeking a declaration that the sale- deed executed by their mother on 10.06.1981 in favour of the defendant no.1 was void in view of the provisions of Section 57 of the Act of 1948. Firstly, it appears that the suit was hopelessly barred by limitation and secondly, the findings recorded by the competent civil Court in R.C.S. No.380/1988 operated against the present plaintiffs and it was not possible for the Courts to hold in the present proceedings that the sale transaction dated 10.06.1981 was void in view of the provisions of Section 57 of the Act of 1948. The judgment reported in 2010 (2) Mh.L.J. 970 (Sarjerao Maruti Sathe Versus Pralhad Laxman Sathe & others) and relied on by the counsel for the appellants, cannot be made applicable to the facts and circumstances of the present case, specially when the land was sold on 10.06.1981, the suit was filed in the year 1998 and the previous suit filed by the mother in 1988 was dismissed and the judgment had attained finality after the dismissal of the appeal against the same. 5 The findings recorded by both the Courts are based on a proper appreciation of the material evidence on record as also the law on this subject. The findings do not give rise to any substantial question of law. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE