(1) SA 437.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 437 OF 2008 Vasant S/o. Eknathrao Acharaya Age: 46 years, Occu.: Agriculture, R/o : Acharaya Takli, Tq. Parli Vaijnath, District: Beed APPELLANT (Orig.Plaintiff) VERSUS 1. Chabubai Sriram Sable, Age : 54 years, Occu.: Agriculture 2. Balasaheb S/o. Sheshrao Rode, Age : 33 years, Occu.: Agriculture 3. Shivaji S/o. Pandit Kirwale, Age : 19 years, U/g.of Pandit Shamrao Kirwale, Age : 49 years, Occu.: Agriculture 4. Prabhakar S/o. Narayan Rode, Age : 45 years, Occu.: Agriculture, All R/o.: Kaudgaon Sable, Tq. Parli Vaijnath, Dist. Beed RESPONDENTS (Orig.Defendants) ..... Mr. P.R. Katneshwarkar, Advocate for the Appellant. Mr. N.T. Bhagat, Advocate for the Respondent nos.3 and 4. None present for respondent nos. 1 and 2 though served ..... CORAM : M.T. JOSHI, J. DATED : 17TH AUGUST, 2011 ORAL ORDER: 1. Heard. (2) SA 437.2008 2. The present appellant had filed the suit in the trial Court for perpetual injunction, claiming to be title holder of the suit property on the basis of the sale deed claimed to have been executed by the respondent no.1 Chabubai. The learned trial Court as well as the first appellate Court recorded a finding that neither the original sale deed i.e. the primary evidence was placed before the Court nor any of the scribe or attesting witness having been brought in the witness box, and dis-believed the case of the appellant. In fact, the secondary evidence i.e. certified copy of the sale deed was merely filed on record and the appellant wanted to believe his case by both the Courts. 3. Mr. P.R. Katneshwarkar learned counsel for the appellant submits that the special civil Suit no. 98 of 1996 was filed by respondent nos. 3 and 4 i.e. the original defendant nos. 3 and 4 against the appellant and his predecessor in title i.e. respondent no.1 Chabubai claiming certain reliefs regarding the suit property on the basis of certain (3) SA 437.2008 agreement between Chabubai and those defendants. According to him, the suit was dismissed, wherein it was held that the present appellant-plaintiff was the title holder of the suit property on the basis of the sale deed. 4. No plea of res-judicata was raised before any of the Courts. The trial Court as well as the first appellate Court, therefore did not touch the said aspect. The plea of res-judicata is a mixed question of law and facts. 5. It has been vehemently argued that both the Courts below did not consider the certified copy of the judgment delivered in Special Civil Suit no. 98 of 1996. It has been argued that the certified copy of the judgment was a piece of evidence and, therefore, it should have been considered by the learned Courts below and it was the patent error on the part of the learned trial Court. 6. However, as already observed, as there are no pleadings, which could be met by the other side, I neither find that there is any substantial question (4) SA 437.2008 of law, has arisen nor there is any patent error committed by the trial Court. The Second Appeal is therefore dismissed. Sd/- [M. T. JOSHI, J.] arp/