1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.519 OF 2007 SECOND APPEAL NO.519 OF 2007 SECOND APPEAL NO.519 OF 2007 Gajanan Balkrishna Kane .. Appellant V/s. Ramchandra Gopal Chavan (deceased through his LR’s) Indirabai Ramchandrachavan & Ors. .. Respondents Ms.Seema Sarnik for the Appellant. Mr.S.N.chandrachud for Respondents Nos. 1(B) and 4 in Second Appeal 519 of 2007. Mr.s.M.Kazi for Respondent No.1(A),(C),(D),(E) and (F) in Second Appeal No.519 of 2007. Mr.S.N.Chandrachud for the Appellant in Second Appeal No.1008 of 2007. Ms.Seems Sarnik for the Respondent in Second Appeal No.1008 of 2007. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. DATE : JULY 16TH, 2008. DATE : JULY 16TH, 2008. DATE : JULY 16TH, 2008. P.C. P.C. P.C. . This Second Appeal arises out of the Judgment and decree dated 7th October, 2004 passed by the learned Joint District Judge, Ratnagiri in Regular Civil Suit No. 92 of 2001. 2. The Appellant is the Original Plaintiff in 2 Regular Civil Suit No.19 of 1981 filed by him for declaration that the decree passed in Regular Civil Suit No. 83 of 1975 is not binding on him. 3. The Appellants and the Respondent Nos. 3 to 6 trace their lineage to one Ramchandra Kane. The Appellant is the heir of Balkrishna whereas the Respondent Nos. 3 to 6 who are the Defendants are the heirs of one Damodar. The subject matter of the suit is land bearing Survey No.407 B, admeasuring 63R consisting of a cattle shed. The said property was sold to said Balkrishna by one Dattatrya Date by sale deed dated 19th August, 1925, by a release deed (Badav Patra) dated 11th January, 1934, the said property was released in favour of the Damodar who was the brother of Balkrishna and father of Respondent Nos. 3 to 6. Accordingly, mutation entry No. 816 came to be effected on 25th March, 1934 in the name of Damodar Kane. It appears that Balkrishna died in the year 1961. Thereafter, Damodar on 14th September, 1996 executed a Power of Attorney in the name of Chintamani son of Balkrishna who is the Defendant No.7, in the said suit Chintamani. By a registered sale deed dated 29th February, 1974 Chintamani sold the suit property to the Defendant Nos. 1 and 2 i.e. the Chavans. In 3 view of the threatened obstructions the Defendant Nos. 1 and 2 i.e. the Chavans filed Regular Civil Suit No.83 of 1975 for possession and permanent injunction in respect of the cattle-shed. The said suit came to be decreed in favour of the Defendant Nos. 1 and 2 i.e. Respondent Nos. 1 and 2 herein. 4. Aggrieved by the decree the Defendant No.7 Chintamani filed Regular Civil Appeal No.182 of 1977 which came to be dismissed on 31st July, 1980. The Defendant Nos. 1 and 2 filed execution proceeding being Regular Darkhast No. 86 of 1980 for execution of the decree passed in the said Regular Civil Suit No. 83 of 1975. The said decree came to be challenged by the Defendant No.7 by filing Second Appeal in this Court which came to be dismissed on 26th February, 1981. The decree in the said Regular Civil Suit No.83 of 1975 therefore attained finality. 5. The Appellant herein who is also the son of Balkrishna filed Regular Civil Suit No.19 of 1981 seeking a declaration that the decree passed in Regular Civil Suit No. 83 of 1975 was not binding on him. In the meantime, in the execution proceedings of the decree passed in the said Regular Civil Suit No. 83 of 4 1975, the possession of the cattle-shed was taken over by the Defendant Nos. 1 and 2 herein. The Regular Civil Suit No.19 of 1981 filed by the Appellant herein came to be dismissed by the learned Civil Judge, Ratnagiri by Judgment and order dated 5th September, 2001. 6. Aggrieved by the same, the Appellants herein filed /Regular Civil Appeal No. 91 of 2001 which also came to be dismissed on 7th February, 2004. Against the Judgment and decree passed in the said Regular Civil Appeal No. 92 of 2001 that the current Second Appeal is filed. 7. In so far as the case of the Appellants that the said decree is not binding upon him is concerned, both the Courts below on the basis of the Badavapatra (release deed) have held that the Appellant has no right in respect of the said property after the execution of the said Badavapatra, by his father Balkrishna. In so far as the issue of res-judicata is concerned, both the Courts below have held that the Appellant was very much aware of the Regular Civil Suit No.83 of 1975 but had purposely kept away from the said proceedings. Both the Courts below also held that 5 since the Appellant has no right in the property in question, there was no question of the applicability of the principles of Res-judicata. As indicated above, the suit filed by the Appellants herein i.e. Regular Civil Suit No.19 of 1981 was in respect of the applicability of the decree passed in Regular Civil Suit No.83 of 1975. The decree passed therein has already been satisfied in the execution proceedings and the cattle-shed is already in possession of the Respondent Nos.1 and 2. Both the Courts below have recorded concurrent findings of fact. In my view the challenge raised in the also Second Appeal does not involve any substantial question of law. 8. The Second Appeal is, accordingly, dismissed. 9. In view of the order passed in Second Appeal, the Civil Application No.1872 of 2007 does not survive and is disposed of as such. [R.M. SAVANT, J.] [R.M. SAVANT, J.] [R.M. SAVANT, J.]