1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 140 OF 1986 Shamlal S/o Bishanlal Yadav .. Appellant Versus Bansilal S/o Chotulal Yadav .. Respondent Mr. S.V. Mundhe, Advocate for the Appellant Mr. M.V. Deshpande, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 17th JUNE, 2009 COURT’S ORDER:- 1] While admitting the appeal, this Court framed two substantial questions of law:- [i] Tenability of the suit (from which this Appeal arises) filed by the appellant, having regard to Order 2 Rule 2 of the Code of Civil Procedure. [ii] Serious error in appreciation of evidence leading to dismissal of the appellant’s claim. 2] With the help of the learned counsels appearing for the parties, I went through the 2 judgments of both the lower Courts. The appellant had filed a suit for perpetual injunction in respect of the suit land in 1981 and the suit came to be dismissed vide a compromise that the parties recorded in the appellate Court on 14.6.1983. The plaintiff through this compromise agreed that on receipt of Rs.4,000/- he had given up all his rights to the suit land. Despite of this, the appellant filed the present suit alleging that he had paid Rs.45,000/- to the respondent, when he entered into agreement of sale of the suit land. He further asserted that since the respondent lost his title to the suit property, the respondent should refund the amount to him. The lower appellate Court rightly held that at the time when the appellant filed his first suit in 1981, the appellant voluntarily omitted to sue the respondent for refund of the amount, which is the subject matter of the present appeal. So, the provisions of Order 2 Rule 2 of the Code of Civil Procedure would bar the present suit. The findings of the lower Court on this question is not incorrect and cannot be disturbed. 3 3] As regards the appreciation of evidence, I find that the lower appellate Court, appreciated the facts of the case in better manner and correctly. Having gone through it, the findings recorded by the learned trial Court, I found that the appreciation of evidence by the trial Court was grossly erroneous. The lower appellate Court corrected it, and so there is no question of interference. 4] The appeal stands dismissed. Rule discharged. Sd/- (A.V. NIRGUDE, J.) arp/17june9/sa140.86