1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.1028 of 2008 With Civil Application No.2642 of 2008 Mr.Sushil Navalmal Sanghvi Appellant Vs. Mr.Lalit Babulal Sanghvi & ors. Respondents Mr.A.M.Kulkarni for appellant. Mr.Amit BOrkar for resp.no.1. CORAM: B.H.MARLAPALLE & D.B.BHOSALE,JJ. August 27, 2008 P.C. 1. Heard Mr.Kulkarni, the learned counsel for the appellant - plaintiff. Mr.Borkar appears for the respondent no.1 - original defendant no.1. 2. This appeal is directed against the judgment and decree passed by the learned Civil Judge, Senior Division at Kolhapur thereby dismissing Special Civil Suit No.321 of 2002 on 6/3/2008. Amongst the Issues framed by the trial Court, the following three Issues and Issue Nos.1 to 3 in the judgment under challenge are relevant for our consideration and the suit has been dismissed mainly because all these three Issues have been answered against the plaintiff (in the negative). 2 (a) Whether the plaintiff proves that as on the date of institution of the suit he was entitled for 25 per cent independent share in the suit property? (b) Whether the plaintiff proves that the Special Civil Suit No.369 of 1994 was confined only to the extent of 25 per cent share of Navalmal Sanghvi? And (c) Whether the plaintiff proves that the defendant no.1 admitted that the share of plaintiff is 75 percent in the suit property? 3. The plaintiff is the son of Navalmal Oswal (Sanghvi). Navalmal had three other brothers including the defendant no.1. The ancestral property of Navalmal and his three brothers was partitioned and Navalmal was given 25 per cent of the total property in the said partition. Navalmal died on 21/9/1988 leaving behind his wife, son (the plaintiff) and four daughters i.e. Rekha, Preeti, Maya and Sheetal. However, on 27/7/1988 i.e. a few months before his demise he had executed a Will (Exh.58) and bequeathed 3 the property received by him in the family partition, in favour of his brother Lalit (defendant no.1). 4. Sometimes in the month of August 1994 Navalmal’s widow Divyalata, son - Sushil (the present plaintiff) and daughter Sheetal jointly filed Special Civil Suit No.369 of 1994 and prayed for a declaration that the LRs of Navalmal i.e. the plaintiffs and defendant nos.3 to 5 were the exclusive owners of the suit property and also prayed for deletion of the names of defendant nos.1 and 2 from the property card of the suit property. In para 1 of the plaint the suit property was described as under: Survey No. Area ------------------------------- 28/1 20.1 Sq.Mtrs. 28/2 11.7 Sq.Mtrs. 28/3 381.3 Sq.Mtrs. 28/4 20.1 Sq.Mtrs. -------------- Total 433.20 Sq.Mtrs. =============== . The said suit was contested by defendant nos.1 4 and 2 and on or about 24/6/1997 a joint purshis was filed by the plaintiffs in Special Civil Suit No.369 of 1994. The said suit was withdrawn by the plaintiffs for the reasons stated in the said purshis dated 24/6/1997. In the first paragraph of the said purshis the plaintiffs accepted the will dated 27/7/1988 and withdrew the averments made in the plaint regarding the ownership including the shares of the suit property. In para 2 of the said purshis they accepted that as per the Will dated 27/7/1988 executed by Navalmal, the Suit property admeasuring 433.2 Sq.Mtrs. was the property of Shri Lalit Babulal Sanghvi who was defendant no.2 in Special Civil Suit No.369 of 1994 and the brother of Navalmal. They further admitted that Lalit was the absolute owner of the suit property and he was entitled to enjoy the same. This declaration was unconditional as stated in the purshis. 5. After having withdrawn Special Civil Suit No.369 of 1994 in terms of the joint purshis filed on 24/6/1997 by all the three plaintiffs in the said suit, the present appellant brought a fresh suit i.e. Special Civil Suit No.321 of 2002 almost after five years from the withdrawal of the earlier suit and in 5 respect of the very same suit property. He prayed for partition of the very same suit property and for the possession of his share to the extent of 25 per cent i.e. 1/4th of the suit properties. The trial Court, having regards to the Written Statement filed by the defendant no.1 i.e. Shri Lalit Babulal Sanghvi, the brother of deceased Navalmal, framed the Issues and having regards to the joint purshis filed in Special Civil Suit No.369 of 1994 by the plaintiff and defendant nos.2 and 3n answered all the three Issues in the negative. We do not find any error committed by the trial Court in holding that as on the date of institution of Special Civil Suit No.321 of 2002, the plaintiff was not entitled to claim 25 per cent of his independent share in the suit property, the plaintiff failed to prove that the share of the defendant no.1 was confined to the extent of 25 per cent in the suit property and that the defendant no.1 had not admitted that the share of the plaintiff was to the extent of 75 per cent in the suit property on the date the suit was filed. Mr. Borkar rightly placed reliance on the decision in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior & ors. [(1987) 1 SCC 5] [(1987) 1 SCC 5] [(1987) 1 SCC 5]. Their Lordships observed, 6 "...The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit..." . Though the said analogy was applied by the Supreme Court in a writ petition filed under Articles 226 and 227 of the Constitution, the principle laid down squarely applies to the instant case as well and we are, therefore, of the considered opinion that this appeal must fail at the threshold. 6. The appeal is dismissed in limine. 7. Civil Application does not survive and the same stands disposed. (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.)