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. 416 OF 2008 SECOND APPEAL NO. 416 OF 2008 SECOND APPEAL NO. 416 OF 2008 Ramchandra Ganu Sangale & Ors. .. Appellants Vs. Smt.Indubai Bhairu Sangale & Ors. .. Respondents Mr.S.P.Patwardhan for the Appellants. Mr.V.S.Kapse for the Respondents. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. DATED : 17TH JANUARY, 2009 DATED : 17TH JANUARY, 2009 DATED : 17TH JANUARY, 2009 P.C. P.C. P.C. . Both the Court below have recorded concurrent finding of fact that the suit properties were joint family properties of the Plaintiffs and Defendants and they have 1/6th share in the suit property. However, the Trial Court dismissed the suit for partition and separate possession solely on the ground that the proper court fee was not paid and consequentially the Court did not have pecuniary jurisdiction to try the suit. But, for this negative finding, all other findings were rightly recorded in favour of the Plaintiffs/Respondents. The first Appellate Court has allowed the Appeal and decreed the suit. 2. It will not be out of place to mention that at ( 2 ) the threshold of the Trial, the present Appellants had raised a preliminary issue about the valuation and pecuniary jurisdiction of the Court. The preliminary issue was framed and came to be answered against the Appellants. Thus, the question that arises for consideration is as to whether finding recorded by the Trial Court on preliminary issue would operate as res-judicata under section 11 of the Code of Civil procedure or otherwise. The point is clearly covered by the Judgment of Apex Court reported in (1997) (1997) (1997) Supreme Court cases 89 in case of Fenner (India) Ltd. Supreme Court cases 89 in case of Fenner (India) Ltd. Supreme Court cases 89 in case of Fenner (India) Ltd. V/s.Punjab & Sind Bank. V/s.Punjab & Sind Bank. V/s.Punjab & Sind Bank. Wherein the Apex Court has held that the decision on the preliminary issue would operate as res-judicata under section 11 of the Code of Civil Procedure and that issue cannot be allowed to be raised again. In this view of the matter, there is no infirmity in the Judgment and decree passed by the Appellate Court calling for an interference in the Second Appeal. The question of law raised in this Appeal is not a substantial question of law as the same is already answered by the Apex Court in the above referred case. In the result, there is no merit in the Appeal, the Second Appeal is, accordingly, disposed of. ( 3 ) (A.P.DESHPANDE, J.) (A.P.DESHPANDE, J.) (A.P.DESHPANDE, J.)