(1) SA. 573.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 573 OF 2009 1. Bhagchand S/o Nagoji Bhawle Age : 70 years, Occu.: Agri., R/o. Manjula Colony, Near Deccan Flour Mill, Paithan Road, Aurangabad 2. Ramchandra S/o Nagoji Bhawle Age : 55 years, Occu.: Agri., R/o. As above .. Appellants (Ori. Plaintiffs) VERSUS 1. Sardar Abchalnagarsingh S/o Sardar Karamsingh Bindra, Age : 75 years, Occu.: Business, R/o. J.J. Colony, House No. J-III/92 Vazirpur, Delhi, Presently residing at Dr. S.M. Bindra Galli, Padampura, Aurangabad 2. Sardar Niranjansingh S/o Sardar Karamsingh Bindra, Age: 70 years, Occu.: Business, R/o.: Dr. S.M. Bindra Galli, Padampura, Aurangabad (deceased through his Legal Heirs) a) Sardar Amarjeetsingh S/o Sardar Niranjansingh Bindra, Age: 45 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad b) Sardar Sagarsingh S/o Sardar Niranjansingh Bindra, Age: 50 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad (2) SA. 573.2009 c) Sardar Gurunamsingh S/o Sardar Niranjansingh Bindra, Age : 45 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad 3. Sardar Manjeetsingh S/o Sardar Karamsingh Bindra, Age: 40 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad 4. Sardar Tarasingh S/o Sardar Karamsingh Bindra, Age : 38 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad 5. Sardar Manmohansingh S/o Sardar Karamsingh Bindra, Age: 35 years, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad 6. Sardar Nanaksingh S/o Sardar Karamsingh Bindra, Age: 32 years, Occu.: Business, R/o. Dr. S.M. Bindra Galli, Padampura, Aurangabad 7. Smt. Gurucharan Kaur w/o Ranjitsingh Rekhi, Age: 30 years, Occu.: Household, R/o. Harshamant Manzil, Anuradha Talkies, Nashik Road, Nashik (Deceased through Legal Heirs) a) Sardar Babbalsingh S/o Sardar Ranjitsingh Rekhi, Age: 32 years, Occu.: Business, R/o. As above b) Sardar Sonusingh S/o Sardar Ranjitsingh Rekhi, Age: 35 years, Occu.: Business, R/o.: As above (3) SA. 573.2009 8. Smt. Charanjit Kaur W/o. Sardar Hardayalsingh, Age : 33 years, Occu.: Household, R/o. Padampura, Aurangabad 9. Smt. Taranjit Kaur W/o Sardar Jagrajsingh Bagga, Age: 40 years, Occu.: Household, R/o. Padampura, Aurangabad 10.Smt. Ravindra Kaur W/o Sardar Durlabsingh Chatwal, Age : 34 years, Occu.: Household, R/o Anguri Bag, Aurangabad .. Respondents (Ori. Defendants) AND CIVIL APPLICATION NO. 8261 OF 2009 IN SECOND APPEAL NO. 573 OF 2009 Bhagchand S/o Nagoji Bhawle and anr. .. Applicants VERSUS Sardar Abchalnagarsingh S/o Sardar Karamsingh Bindra and ors. .. Respondents Mr. M.R. Andhale, Advocate for the appellants- applicants Mr. A.D. Kasliwal, Advocate for respondent nos. 1, 3 to 6 and 8 to 10 CORAM : A.V. NIRGUDE, J. DATED : 22ND SEPTEMBER, 2009 ORAL ORDER:- 1] The second appeal is filed against the judgment and decree passed by the first appellate Court in Regular Civil Appeal no. 9 of 2009. The (4) SA. 573.2009 Appeal had arisen from the judgment and decree dismissing the suit of the appellant bearing Regular Civil Suit no. 34 of 2001. 2] The litigation has a previous history. The subject matter of the litigation is certain land survey no. 22/2 admeasuring 2 Acre 2 Guntha situated at Aurangabad. It is the case of the appellants that this land originally belonged to one Harnamsingh S/o Jagatsingh. The appellants' mother Manjulabai purchased this land from Harnamsingh in 1971 and 1972 through two registered sale deeds. Manjulabai got her name mutated in the revenue record. The respondent no.1 in 1993, filed a suit against the appellants, asserting that the suit lands belonged to his father Kamalsingh who happen to be Harnamsingh’s brother. He asserted that in 1946 or so, there was oral partition between Harnamsingh and Kamalsingh and the suit land fell to the share of Kamalsingh. He, in other words, asserted that the appellants and his vendor had no valid title to the suit land. The suit was decreed. Initially the appellants had not filed written statement for opposing the suit. The appellants filed appeal and secured opportunity to file written statement when the suit was remanded back to the trial Court in the year 2004. But even then the appellants did not file written statement and did not oppose the suit on merits. The suit was again decreed. The appellants did not file appeal in (5) SA. 573.2009 time. There was delay of 79 days. The appellants could not get the delay condoned. Thus, the first appeal came to be dismissed in 2007. The appellants then challenged the said decision of the first appellate Court in this Court by filing Second Appeal no. 594 of 2007 which was also dismissed on 7.4.2008. While this was going on, in 2001, the appellants filed the present suit challenging the decree passed in Suit no. 52 of 1993 on the ground that it was obtained by fraud. They also asserted that the respondent no.1 used a forged document to set up title to the suit land. All the respondents contested this suit and it came to be dismissed on 15.12.2008. Thereafter, the appellants filed an appeal. It was Regular Civil Appeal no. 9 of 2009 and the learned District Judge, Aurangabad dismissed it by the impugned judgment. The learned District Judge, dismissed the suit only on the ground that it was hit by the principles of Res-Judicata. 3] The question is whether the finding is incorrect and whether such finding gives rise to any substantial question of law? The answer is in the negative. The subsequent litigation initiated by the appellants was squarely hit by the principles of Res-Judicata. The appellants, could and ought to have raised all the grounds of defence in the written statement which they could have filed after the suit no. 52 of 1993 (6) SA. 573.2009 was remanded back to the trial Court on 12.3.2004. It is pertinent to note that on that day, the appellants' suit was already pending and they had placed on record all the objections and grounds of defence in the plaint. All that was required then for them, was to file appropriate written statement enumerating the points which they had raised in the plaint of suit no. 34 of 2001. With that, they could have contested the earlier suit no. 52 of 1993 and could have got finding on all the material questions of facts and law. If this is not done despite opportunity, then the case of the appellants would fall in explanation 4 of section 11 of Code of Civil Procedure. 4] Despite of this, the learned Advocate appearing for the appellants placed reliance on judgment of Supreme Court in the case of A.V. Papayya Sastry and others V. Government of A.P. and ors. reported in 2007 ALL SCR 1363. Having gone through the judgment, I realised that this judgment has no application to the case in hand. Even the other two judgments of our High Court in the matter of Food Corporation of India V. Prashant Pandurang Ramteke and others reported in 2005(4) Mh.L.J. 742 and another in the matter of Kisan S/o Ramji Khandare V. Kausalyabai w/o Gangaram Korde and others reported in 2007(2) Mah L.R. 122, referred to by the learned Advocate appearing for the appellants, are not (7) SA. 573.2009 applicable to this case. 5] The Second Appeal stands dismissed. In view of the dismissal of Second Appeal no. 573 of 2009, Civil Application no. 8261 of 2009 seeking injunction, does not survive and the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp