: 1 : SD 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.493 OF 2003 SECOND APPEAL NO.493 OF 2003 SECOND APPEAL NO.493 OF 2003 Sonabai Baburao Baigamwar, Deceased, . Thru’ Dattatraya B. Baigamwar ...Appellant V/s. Vijay Baburao Hinge & Anr. ...Respondents Mr.S.V. Sadavarte, Advocate, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate appearing for the appellant. The appellant is the original plaintiff. The appellant has failed in both the Courts below. 2. Appellant is the owner of the suit property. Originally the 2nd respondent was the tenant of the appellant in respect of the suit property. The appellant obtained a decree against the 2nd respondent by filing a suit in the Court of Small Causes. In execution proceedings of the said decree, there was a settlement between the parties in which it was agreed that the 2nd respondent-tenant will surrender the suit premises and it was agreed that the appellant will sell the suit premises to the 1st respondent. : 2 : 3. According to the case of the appellant one of the conditions incorporated in the agreement was that the appellant will obtain permission of the Cantonment Board to sell the suit property. In the year 1984, the appellant filed the suit in the Small Causes Court against the respondents which was dismissed for want of jurisdiction. Thereafter, a suit was filed in the Civil Court by the appellant contending that the agreement for sale executed by the appellant stands cancelled. A prayer was made in the said suit for passing a decree for possession. In the said suit, the Trial Court granted protection under Section 53-A of the Transfer of Properties Act, 1882 to the 1st respondent and dismissed the suit filed by the appellant. The said decree has attained finality. 4. It appears that the appellant applied to the Cantonment Board for grant of sale permission. The Cantonment Board declined to grant permission. Thereafter, a fresh suit was filed by the appellant contending that the agreement of the year 1973 was not capable of being performed and therefore the same was rendered invalid. The appellant prayed for a decree of possession. The said suit was dismissed by the Trial Court by holding that the same was barred by : 3 : principles of res-judicata. The Appellate Court has confirmed the said finding. 5. The submission of the learned Advocate for the appellant is that in the agreement for sale dated 19th April, 1973, there was a condition which required appellant to obtain permission from the Cantonment Board. He pointed out that the present suit was filed after the Cantonment Board rejected the application for grant of permission. He, therefore, submitted that after rejection of the permission, the 1st respondent could not have obtained a conveyance in his favour. He, therefore, submitted that in view of the subsequent event of rejection of the application by the Cantonment Board, the second suit was maintainable and obviously the principles of res-judicata were not applicable. 6. I have carefully considered the submissions. In the earlier suit filed by the appellant, a prayer was for declaration that the said agreement stands cancelled. The appellant also prayed for possession. In the said suit there is a finding of fact recorded by the Trial Court that the 1st respondent was entitled to protect his possession under Section 53-A of the said Act of 1882. The decree passed in the : 4 : earlier suit filed by the appellant has become final. 7. In the second suit, the appellant alleged that the agreement was rendered invalid on account of refusal of the Cantonment Board to grant permission for sale of the property. There is already a concluded finding that the 1st respondent was entitled to protection under Section 53-A of the said Act of 1882. The fact that application made by the appellant-plaintiff was rejected does not militate against the readiness and willingness of the 1st respondent. In fact, it was for the appellant to challenge the decision of the Cantonment Board. 8. Therefore, the finding of the Courts below is that the issue regarding entitlement of the appellant to possession of the suit property was heard and finally decided in the earlier suit by holding that the 1st respondent was entitled to protection under Section 53-A of the said Act of 1882. 9. Therefore, no fault can be found with the impugned Judgments and Decrees. No substantial question of law arises. Second Appeal is accordingly dismissed with no order as to costs. : 5 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]