SA.659-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 659 OF 2008 Krishna @ Kisan Vithu Ghodake & Ors. ...Appellants Vs. Tukaram Ghodke (since deceased, represented through LRs.) Ors. ...Respondents *** Mr. Avinash B. Avhad, for the Appellants. Mr. A. P. Kulkarni, for the Respondent Nos. 1A to 1E. *** CORAM: V. M. KANADE J. DATE : JANUARY 27, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the appellants and respondent Nos. 1A to 1E. The appellants are original plaintiffs. They had filed the suit for partition, contending that the suit property was a joint family property. The defendants filed the written- statement and contended that the plaintiff was not the son of Vithu Ghodake and therefore, he was not entitled to seek partition. It was further contended that a finding to that effect was already given by the SA.659-08 - 2 - Civil Court in an earlier proceeding which was instituted by the plaintiffs /appellants herein. The said suit was for injunction simplicitor. It was also contended in the written-statement that this suit was barred by limitation. The trial Court decreed the suit. In appeal, however, the Appellate Court allowed the appeal of the respondents/defendants therein and dismissed the suit of the plaintiffs. The Appellate Court held that the trial Court had erred in not framing the issue of res judicata and limitation, though it was specifically pleaded by both the parties. The defendants having led evidence on this point and since it is brought on record that the finding recorded by the Civil Court in the earlier proceedings on the basis of the said documentary evidence, the Appellate Court came to the conclusion that since the issues are already decided in the earlier suit, the plaintiffs are estopped from raising this issue and therefore, the suit was barred by res judicata. The Appellate Court also held that on the basis of facts which were brought on record, the suit was barred by limitation. 2. The learned counsel appearing on behalf of the appellants submits that the Appellate Court should not have decided the issues of res judicata and limitation, firstly because the trial Court had not framed these issues; secondly, in the suit which was filed by the plaintiff, the SA.659-08 - 3 - trial Court had held that the plaintiff had not proved that he was son of Vithu Ghodake. It is, therefore, submitted that the said finding could not be treated as being finally adjudicated by the Civil Court in the earlier proceedings. 3. The learned counsel invited my attention to the said finding recorded by the Civil Court in the earlier civil suit which was filed in the year 1974. He also invited my attention to the observations made by the Appellate Court on the question of res judicata and limitation. 4. It is not possible to accept the submissions of the learned counsel appearing on behalf of the appellants. The lower Appellate Court has rightly held that though there was specific pleading in the written statement on the point of res judicata and limitation, no issue can be framed on those two points. However, since the evidence was already on record and on the basis of said evidence the points for determination of res judicata and limitation were framed by the Appellate Court, which is permissible in law. 5. It is well settled position in law that if an issue is decided in earlier civil proceeding, the said issue cannot be raised again in the subsequent proceeding, though the causes of action in both the suits are different. In the present case, the suit filed by the plaintiff in the year SA.659-08 - 4 - 1974, an issue was framed by the Civil Court as to whether the plaintiff proves that he is a son of Vithu Ghodake and the said issue was answered in the negative. That being the position, the plaintiff was not again entitled to raise this issue in a suit for partition. Hence, in my view, no substantial question of law is raised in the Second Appeal. Second Appeal is, therefore, dismissed. [ V. M. KANADE J.]