1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 943 OF 2005 Smt. Jomubai Namdeo Mokal since deceased Mohan Namdeo Moka; & ors........Appellants versus Changu Laxman Mokal ........ Respondent. Mr. S.M. Tendulkar adv. for the Appellants Ms.Gauri Godse adv. for the respondent CORAM: RANJIT V. MORE, J. DATED : 15th DECEMBER,2008. P.C.: 1. Heard Mr. Tendulkar learned counsel for the appellant and Ms. Godse for the respondent. The appellant is the original defendant and the respondent is the original plaintiff. Suit was filed for removal of encrochment and for possession of the suit property. The trial court decreed the suit and the lower appellate court confirmed the decree of the trial court. Both the lower courts below concurrently held that the respondent/plaintiff is the owner, in possession of the suit property and the appellant/defendant have encroached upon the suit land. This finding of fact is recorded after appreciation of the evidence on record. After going through the impugned judgment, I do not find 2 any error in the approach adopted by the lower courts below. 2. The learned counsel for the appellant however submitted that the suit is barred by principle of res judicata . The trial court recorded the finding that to substantiate this ground the appellant has not adduced any satiafactory evidence. This finding of the trial court has also confirmed by the lower appellate court. Mr. Tendulkar invited my attention to the contention in para 4 of the plaint and pointed out that in earlier suit plaintiff/respondent filed application complaining encroachment. However this application remained undecided. In the absence of decision on merit it cannot be said that there was adjudication and therefore in my considered view the suit is not barred by principles of res judicata. No question of law much less substantial question of law is involved. Second appeal is accordingly dismissed. (R. V. More, J.)