1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 407 OF 2008 (Smt. Subhadrabai Mahadeo Kolhe & Ors. vs. Hareshwar Swami Guru Gurulinga Swami Math & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 05, 2009. Heard Shri Deshpande, learned counsel for the appellants and Shri Gupta, learned counsel for respondent No.1. The appellants in this Second Appeal are the original defendants. The respondents – plaintiffs filed a suit for possession against the present appellants and that suit has been concurrently decreed. Shri Deshpande, learned counsel has argued that apart from the portion for which the suit was filed, Respondent No.2 – Chandrakant is independently in possession of some portion of the suit house and as such the decree cannot operate against him. He further contended that the respondent – plaintiff Siddharam did not enter the witness box and he examined his power of attorney Shivlinga. Shivlinga has accepted that the predecessor in title of present appellants was 2 inducted as licensee in 1971. At that time, there was no writing and the transaction was oral. He also accepted in cross examination that nobody was present in 1971 when said transaction took place. In view of this admission in cross examination and by placing reliance upon the judgment of the Hon'ble Apex Court in the case of Janki Vashdeo Bhojwani vs. Indusind Bank Limited, reported at AIR 2005 SC 439, Shri Deshpande, learned counsel has contended that as power of attorney was not competent to depose about 1971 transaction, the nature of entry of present appellants into suit premises as alleged has not been established and hence suit for possession could not have been decreed. He further argues that though lower appellate Court has invoked res judicata in the matter, the earlier Civil Suit No. 188 of 1985 was only for injunction and as there was no declaration sought for, the title dispute as such has not been gone into. He contends that therefore adjudication cannot operate as res judicata. Shri Gupta, learned counsel for respondent No.1, on the other hand, invites attention to the entire deposition produced by him on record. He states that the evidence has been rightly appreciated and the earlier adjudication in 3 Regular Civil Suit No. 188 of 1985 operates as res judicata. It is to be noticed that previous Regular Civil Suit No. 188 of 1985 was filed against Chandrakant by present Respondent No.1 seeking injunction to restrain him from making any construction on suit property. Respondent No.2 – Chandrakant appeared therein, filed written statement and denied that suit property was owned by Respondent No.1 – Math or then the plaintiff in that suit was its Wahiwatdar. He also denied that his father Mahadeo was allowed to occupy suit property temporarily. It is to be noticed that Chandrakant is son of present appellant No.1 and brother of other appellants. The suit was decided and the trial Court in that suit found that Math was the owner and Mahadeo was allowed to occupy the back portion of that property as gratuitous licensee. Regular Civil Appeal No. 273 of 1986 filed against it was dismissed on 31.12.1992 by IIIrd Additional District Judge, Amravati. It is, therefore, to be noticed that the question of title of suit property as also nature of occupation of present appellants was in dispute in that suit and appeal and findings recorded therein have been rightly held to be res judicata between the parties. 4 The power of attorney examined has stated Mahadeo was inducted in 1971 and he was not present there. In view of the finding reached in Civil Suit and in appeal mentioned above, this evidence is sufficient and in fact when doctrine of res judicata has been made applicable, it is clear that there was no necessity to examine anybody in support of these facts. The reliance upon Janki Vashdeo Bhojwani vs. Indusind Bank Limited, (supra) is, therefore, misconceived in present circumstances. This brings me to consideration of the aspect whether Respondent No.2 – Chandrakant is in possession of any separate portion of suit property. It is to be noticed that Respondent No.2 – Chandrakant has not filed any appeal challenging the impugned judgments and decrees. The cross examination of appellant No.1 shows that suit property was divided into two portions and Southern portion is in possession of appellants including Respondent No.2 – Chandrakant. The evidence of the power of attorney and also the consideration by lower appellate Court reveals that the contention that Chandrakant is independently in possession of some portion of suit property is being raised on the basis of a question put to appellant 5 No.1 in cross examination. When the entire evidence of appellant No.1 is looked into, it is more than clear that she has not understood the questions and she has stated that the entire house property was in possession of Chandrakant. The facts demonstrate that the Northern half is in possession of present Respondent No.1 and Southern half was given to the deceased Mahadeo as gratuitous licensee and after his death, it is in possession of appellants and Respondent No.2 – Chandrakant. I, therefore, find that no substantial question of law arises in this Second Appeal. The same is accordingly dismissed. No order as to costs. JUDGE *GS.