1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.937 OF 2009 Santaram s/o Gangaram Gudadhe, age: 81 years, Occ: Agril., R/o Panegaon, Tal. Newasa, District Ahmednagar. Appellant Versus 1 Bhausaheb s/o Gopala Gudadhe, age: 59 years, Occ: Agril., 2 Uttam s/o Gopala Gudadhe, age: 58 years, Occ: Agril., 3 Sushilabai Bhausaheb Gudadhe, age: 56 years, Occ: Agril., 4 Saraswati Uttam Gudadhe, age: 51 years, Occ: Agril., All R/o Panegaon, Tq.Newasa, District Ahmednagar. Respondents Mr.C.K.Shinde, advocate for the appellant. Mr.V.D.Sapkal, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 04 th February, 2010. P.C.: 1 This is an appeal by original defendant raising exception to the concurrent judgments delivered by Courts below. 2 Plaintiff instituted a suit claiming possession as well as perpetual 2 injunction in relation to the suit property. Respondents No.1 & 2 – original plaintiffs no.1 and 2 are real brothers. Respondent No.3 – plaintiff no.3 is wife of Respondent No.1 – plaintiff no.1 and Respondent No.4 – plaintiff no.4 is wife of Respondent No.2 – plaintiff no.2. Father of plaintiffs no.1 & 2 Gopala is real brother of defendant. It is an admitted position that in family partition, land G.No.90 was allotted to Gopala, whereas, land G.No.91 was allotted to defendant, namely Santram. There are two houses situate in land G.No.90 belonging to plaintiffs and out of those, one house was in occupation of Santram. It is the contention of plaintiffs that after effecting partition, as it was found that defendant has no house of his own, he was permitted to reside in the house property situate in land G.No.90 allotted to father of plaintiffs. Plaintiffs requested defendant to hand over possession of disputed property, however, defendant denied. As such, plaintiffs were constrained to approach Civil Court for securing decree in respect of possession of suit property. 3 Suit claim has been controverted by defendant by filing written statement. It is contended that suit is not entertainable in view of judgment and decree passed in earlier suit i.e. Regular Civil Suit No.6/1993. It was a suit presented by defendant against plaintiffs seeking perpetual injunction in respect of suit property. It is contended that instant suit is hit by principle of res judicata and it is also contended that suit is bad for mis-joinder of parties. Defendant has also controverted contention of plaintiffs as regards permissive nature of possession of defendant over suit property. According to him, he has become owner of suit property by virtue of adverse possession. 4 After receiving evidence led by parties, trial Court granted decree in favour of plaintiffs. Judgment and decree passed by trial Court 3 was subjected to challenge before first appellate Court in Regular Civil Appeal No.159/2002, which came to be heard and disposed of by District Judge-2, Shrirampur, who was pleased to dismiss same in view of judgment and decree dated 16.09.2009. 5 I have perused judgments delivered by both the Courts below. The only point, that has been canvassed before this Court, is in respect of bar of suit in view of earlier decision rendered between same parties in relation to disputed property in Regular Civil Suit No.6/1993. The objection raised by defendant is that suit is barred by principle of res judicata, has been turned down by both the Courts below. It appears that although defendant has claimed bar in respect of entertainability of suit on account of principle of res judicata, he failed to place on record any material to substantiate his contention. Along with this Second Appeal, copy of judgment in Regular Civil Suit No.6/1993 is placed on record. I have perused said judgment delivered by Civil Judge, Junior Division, Newasa on 13.06.2002. In earlier suit i.e. R.C.S. No.6/1993 instituted by appellant / defendant in instant suit against Respondents herein, decree in respect of grant of perpetual injunction was passed. Plaintiff in the said suit contended that by virtue of oral partition, he is allotted suit land G.No.91. It is claimed that appellant herein is in possession and enjoyment of farm house in land G.No.90. It is also claimed that defendant is residing in the said suit since so many years. There is a water channel in front of suit house and there is access to the suit house from South- North common boundary. That Respondents herein / defendants in said suit are owners of the land except common well and house in possession of appellant / plaintiff in said suit. There is obstruction at the hands of respondents herein / defendants in said suit to plaintiff’s enjoyment of suit road as well as common well and farm house and as such, suit came to be 4 instituted. Suit was resisted by defendants therein / respondents in the instant litigation by filing written statement. It is claimed by defendants / respondents herein that appellant / plaintiff in that suit is permitted to occupy suit house. Rest of the things raised in the suit have been denied by respondents. Issues, those were framed by the trial Court, were answered in affirmative. Those are: (1) Whether the suit road and suit land in the plaint Para No.1A and house in para nos.2 and 3 are properly described? (2) Whether plaintiffs prove that except the suit road, they have no other road to enjoy their house mentioned in para nos.2 and 3 of the plaint as alleged? (3) Whether plaintiffs prove that the defendants obstructed their peaceful possession and enjoyment of the suit road and the house mentioned in para nos.2 and 3 of the plaint? (4) Whether plaintiffs are entitled to perpetual injunction sought for? 6 It is to be noted that the restraint order issued by trial Court in earlier litigation is in respect of interference in peaceful enjoyment of appellant herein over road, common well and house in question. The question of title and nature of possession of appellant herein, whether it is permissive or in his capacity as title holder is not touched by the Court while dealing with Regular Civil Suit No.6/1993. There is also no issue framed in that regard. It is also to be noted that decision in said suit was rendered on 13.06.2002, whereas decision in the instant suit is dated 10.10.2002. The fact remains that there is neither any issue framed for determination of title of appellant herein nor same has been dealt with in earlier litigation. 5 7 Learned Counsel for appellant has invited my attention to provisions of Section 11 of the Code of Civil Procedure, 1908. According to him, there is bar to try the suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Learned Counsel for appellant places reliance on Explanation III to Section 11, which reads thus: Section 11 Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I ..... ..... ..... ..... ..... ..... ..... ..... Explanation II ..... ..... ..... ..... ..... ..... ..... ..... Explanation III – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. 8 It is to be noted that question of title was not dealt with in earlier suit nor any decision rendered by Civil Court on such issue. The former suit was in respect of grant of perpetual injunction and the Court, after taking into consideration possession of parties, has granted decree. In my opinion, there is no bar, as envisaged by Section 11 of the Code of Civil Procedure, as there is no formal decision of the competent Court of Civil jurisdiction in 6 respect of issue raised. The argument advanced by learned Counsel appearing for appellant raising bar to the entertainability of suit in view of Section 11 of the Code of Civil Procedure is, therefore, not acceptable. No substantial question of law arises for consideration in the appeal. 9 Appeal, therefore, stands dismissed summarily. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa93709