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. 1280 OF 2005 SECOND APPEAL NO. 1280 OF 2005 SECOND APPEAL NO. 1280 OF 2005 1. Sundarabai w/o Danial Pawar (since deceased through L.Rs.) 1a. Smt. Pushpa Sanjayrao Salian. ... Appellants V/s 1. Pratibha Laxman Dhaygude alias Pratibha Erik Kale. ... Respondent Mr. Shivraj R. Patil for the appellants. Mr. S.A. Sawant for Respondent Nos. 1 and 3. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 17TH OCT., 2005 DATED: 17TH OCT., 2005 DATED: 17TH OCT., 2005 P.C. P.C. P.C.: 1. the appellants have preferred this appeal against the judgment and order passed by the Addl. District Judge, Islampur dated 30.7.2005 confirming the judgment and order passed by the Jt. Civil Judge, Jr.Divn., Islampur dated 29.12.2002 dismissing the plaintiffs’ suit. 2. I have heard the learned counsel for both parties. Perused the record. 2 3. The plaintiffs filed the suit for possession of the suit property and for perpetual injunction alongwith consequential relief. The plaintiffs came with the case that the suit property was gifted by their predecessor in title by virtue of gift deed dated 20.7.1935 and they were in possession thereof by virtue of ownership title. It was the case of the plaintiffs that they had become owner of the suit property by succession as legal heirs of one Bayajabai and, therefore, they were entitled to possession of the suit property A-1 prescribed in the plaint. They have also claimed the perpetual injunction in respect of the suit property A-2. Defendants stoutly challenged the allegations made in the plaint denying the same with the case that the suit was barred by the principles of res-judicata and that defendants had become owners of the suit property and for other consequently relief. 4. The lower Court adjudicated the dispute on merits and came to the conclusion that the suit was barred by principles of res-judicata as contemplated under Sec.11 of the C.P.C. It was however held that the gift deed dated 20.7.1935 which was foundation of the claim of the 3 plaintiffs was not proved and, as such, the suit came to be dismissed. The appeal was carried to the District Court. The learned Addl. District Judge, after hearing both parties, came to the conclusion that the findings recorded by the learned Trial Judge were legal and correct and dismissed the appeal. Hence the present appeal. 5. At the outset, it may be noted that, the only question of law involved in this case is that of bar of res-judicata. In this regard, it is to be noted that earlier Suit No. 41 of 1988 was pending and it was decided on 9.6.1999 and, thereafter appeals were preferred against the said orders and those came to be dismissed. Even the Apex Court dismissed the S.L.P. confirming the findings of the lower Court. Evidently, the issues involved and agitated in the earlier proceeding which is referred by the High Court as well as the Apex Court in their orders. It was submitted on behalf of the appellants at this stage that they came to know about the existence of the gift deed in the year 1988 and, therefore, the present suit is based on their rights involved on the basis of the said suit gift deed. 4 However, it cannot be overlooked that the earlier Suit No. 41 of 1988 was pending till 1999 and was decided on 9.6.1999 and, therefore, it was obvious that if the gift deed was in possession of the present appellants, it was incumbent upon them to bring it on record which they did not do and for which no explanation is coming-forth. Under the circumstances, both Courts have come to the conclusion that, by virtue of Sec.11 of the C.P.C. the suit is barred by the principles of res-judicata, which fact is amply clear from the entire record before us. 6. Under the circumstances, I do not see any merit whatsoever to interfere in the concurrent findings recorded by both Courts below to the effect that the suit is barred by res-judicata. In the result, the appeal stands dismissed with no order as to costs. Consequently, Civil Application No. 1812 of 2005 also stands dismissed with no order as to costs. .....