1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 589 OF 2008 SECOND APPEAL NO. 589 OF 2008 SECOND APPEAL NO. 589 OF 2008 Laxmi Laxman Gharat (since deceased) through L.Rs.: 1a) Shri Dharma Laxman Gharat & Anr. ..Appellants Vs. Narayan Mudya Bhoir & Ors. ..Respondents Mr. Satyajeet Mirajkar, Advocate, for the appellants. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 2nd September,2008 DATE: 2nd September,2008 DATE: 2nd September,2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the appellants. 2. This Second Appeal is filed by the defendant against the concurrent findings of both the Courts below wherein decree for partition and separate possession has been passed in favour of the plaintiff/respondent. 3. To state in brief, one Mukund and the 2 appellant-Laxman were the brothers. The plaintiff/respondent Narayan is Mukund’s wife’s sister’s son. The plaintiff claimed that the said Mukund had executed a Will dated 1.4.1982 and had bequeathed his property in his favour. On the basis of the Will, he had filed Regular Civil Suit No.36 of 1993 claiming declaration that he had become owner of the suit property on the basis of the Will and that he was in possession of the suit property as owner. He also prayed for permanent injunction against the defendant. The defendant had denied that Mukund had executed a Will in favour of the plaintiff. He had contended that the property was a joint family property and the said property was purchased from the joint family funds and that the defendant was in possession of the same. On the basis of the pleadings, issues were framed. After hearing the parties, the trial Court came to conclusion that Mukund had executed a Will on 1.4.1982 in favour of the plaintiff and thus, the plaintiff had acquired ownership of the suit property. The trial Court also came to conclusion that the plaintiff was in possession of the suit property and accordingly, the suit was decreed. That judgment and decree were challenged by the defendant in Civil Appeal No.310 of 1994. In that appeal, the appellate Court also came to conclusion that Mukund had executed a Will in favour of the plaintiff. However, the appellate Court found that the plaintiff 3 was not in possession of the suit property and thatthe possession was with the defendant as joint owners. The appellate Court declared that the plaintiff had become owner of half share in the of lands Survey No.50/2 and 52/3 and entire survey No.1/3 and a House No.176-A. As the defendant was found in possession as joint owner of the property, the claim for injunction was rejected. Nobody preferred any appeal against the judgment of the appellate Court. Thus, the findings of the appellate Court hadd become final. 4. The plaintiff thereafter filed Regular Civil Suit No.7 of 2000 seeking partition and separate share to the extent of half share in the property Survey No.50/2 and 52/3 and possession of entire Survey No.1/3 and house No.176A. The suit was contested by the defendant again on the plea that the plaintiff had no share in the property. After hearing the parties, the trial court came to conclusion that the defendant is in possession of the property as joint owner and the plaintiff is entitled to partition and possession of the same on the basis of the Will. The defendant filed Civil Appeal No.52 of 2004. The appeal also came to be dismissed. However the decree was slightly modified to bring clarity in the matter. Against that, the defendant has preferred the Second Appeal. 4 5. The learned Counsel for the appellant repeatedly contended that in view of certain admissions made by the Sub-Registrar in his evidence in Civil Suit No.36 of 1993, the execution of the Will is doubtful and cannot be relied upon. However, as pointed out above, in the Suit No.36/1993 as well as in Civil Appeal No.310/1994 arising out of the judgment in that suit, both the Courts had given concurrent findings that Mukund had executed a Will in favour of the plaintiff. That finding was never challenged by any of the parties. Therefore, that finding cannot be re-opened and cannot be re-agitated in the subsequent proceeding. 6. I also do not find any substance in the argument of the learned Counsel for the appellant that the suit is hit by the principles of res judicata under Section 11 of the C.P.C. or under Order II Rule 2 of C.P.C. This contention was also rejected by the appellate Court. In fact, if at all, the principles of res judicata is to be applicable, it will be applicable against the defendant because in the previous litigation, the Will has been already proved and the issue which has already been decided in the previous litigation between the same parties, cannot be raised again by the defendant in the subsequent proceeding. In the earlier suit, the plaintiff was claiming possession of the property on the basis of Will, but it was held 5 that possession was with the defendant as joint owner and the plaintiff was entitled to certain share in the property. Therefore, the plaintiff was required to file the suit for partition and possession. 7. Taking into consideration the facts of the case, there is no substantial question of law involved in the present Appeal. The Appeal stands dismissed. 8. As the Appeal itself is dismissed, the Civil Application No.1489 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA, J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.)