1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 254 OF 1989 Sangram Kerba Patil .. APPELLANT VERSUS 1 Hanmantrao Bajirao Patil (died) through his LRs 1A Gunwantrao Hanmantrao Patil 2 Haribai w/o Gangaram Kadam 3 Kausalyabai w/o Raghunathrao Kadam 4 Sushilabai w/o Manikrao Murambikar 5 Subhadrabai w/o Limbajirao Shinde 6 Subadrabai w/o Hanmantrao Patil (died) her LRs. R. nos. 1 to 5 and R. nos. 7 and 8. 7 Uttamrao Hanmantrao Patil 8 Daulatrao Hanmantrao Patil ( R.Nos. 1 to 6 are original plaintiffs, R Nos. 7 and 8 are original defendant nos. 2 and 3.) .. RESPONDENTS WITH SECOND APPEAL NO. 257 OF 1989 2 Sangram Kerba Patil .. APPELLANT VERSUS 1 Hanmantrao Bajirao Patil ( died) through his Legal Representative 1A Gunwantrao Hanmantrao Patil 2 Haribai w/o Gangaram Kadam 3 Kausalyabai w/o Raghunathrao Kadam 4 Sushilabai w/o Manikrao Murambikar 5 Subhadrabai w/o Limbajirao Shinde 6 Sundarabai w/o Hanmantrao Patil ( died) her Legal Representatives Respondent nos. 2 to 5 and Respondent nos. 7 and 8. 7 Uttamrao Hanmantrao Patil 8 Daulatrao Hanmantrao Patil ( Respondent nos. 1 to 6 are original plaintiffs respondent nos. 7 and 8 are original defendant nos. 2 and 3.) .. RESPONDENTS Mr. S.V. Chandole, Advocate holding for Shri V.G. Sakolkar, Advocate for the appellant. None present for respondents. ===== CORAM : P. R. BORKAR, J. DATE : 23 rd JUNE, 2010. 3 ORAL JUDGMENT : 1 Both these appeals and original suits arise between the same parties. They relate to almost same property. Initially, plaintiff Hanmantrao filed Regular Civil Suit no. 74/1976 for perpetual injunction for restraining the defendants from using his property and the learned Civil Judge, Jr.Dn., Udgir was pleased to decree the suit on 30-9-1982 and restrained the defendants / appellants from interfering into possession of plaintiff over disputed site which is shown in red colour and denoted by points A, B, C, D and E in map Exh. 75 as further described in the order. Said decree was challenged in the court in Regular Civil Appeal no. 164/1982 and the appeal was dismissed by the 2 nd Additional District Judge, Latur by order dt. 29-9-1988. Pending the first suit, Regular Civil Suit no. 16/1978 was filed by same Hanmantrao against same defendant / appellant Sangram alleging that pending the first suit, the appellant / defendant has opened a new door and, thereby, the suit for mandatory injunction compelling the defendant / appellant to close the door which was opened in the dilapidate wall and also restraining him from coming in the open space belonging to the plaintiff and to use the lane exclusively used by the plaintiff, was filed. Trial court i.e. Jt. Civil Judge, Jr.Dn., Udgir by decree dt. 13-11-1983 was pleased to reject the prayer for mandatory injunction but restrained the defendant / appellant from using 4 the (chop) lane infront of the house of plaintiff shown as M, G, H, I, F in map exh. 60/1. However, it is made clear that defendant is entitled to have his way from the door shown as D2 and the area L, K, J, I, H, G, M shown in red pencil in map exh. 60/1. As against the said judgment, appeal came to be filed by plaintiff bearing Regular Civil Appeal no. 48/1984 and the appellate court allowed the appeal and granted mandatory injunction restraining the defendant / appellant from causing any obstruction to plaintiff’s enjoyment over the open space in between the (chop) lane and Laxmi temple and also granted mandatory injunction to close the new door opened by him in the southern wall which opens in the (chop) lane infront of plaintiff’s house. Thus, the original prayers made in the suit were allowed. Against said judgment and decree passed by the 2 nd Additional District Judge, Latur, these two second appeals are filed. 2 Though in Second Appeal no. 257/1989, it is mentioned that appeal is admitted on ground no. 16, it is infact ground no. 17 which are identical in both appeal memo. So both appeals are admitted on ground no. 17 of respective appeal memos of second appeals and the point raised is that the second suit is in respect of same relief in respect of same subject matter between the same parties. Since defendant was restrained by perpetual 5 injunction and directed not to interfere in plaintiff’s possession over disputed site as per map exh. 75 and remaining claim of the plaintiff regarding closing of door was dismissed, second suit and appeal thereon should not have been entertained. Infact, earlier decision by the Civil Judge, Jr.Dn., Udgir in Regular Civil Suit no. 74/1986 has become final and it amounts to res- judicata. By allowing Regular Civil Appeal no. 48/1984, the 2 nd Additional District Judge, Latur committed error and granted mandatory injunction. He did not appreciate that the principle of res-judicata is applicable. 3 Heard Shri S.V. Chandole, advocate holding for Shri V.G. Sakolkar, advocate for the appellant in both the appeals. No one was present for the respondent when called out. After giving careful consideration to the judgments, pleadings and the submissions made before this court, particularly map exh. 75 in Second Appeal no. 257/1989 and map exh. 60/1 in Second Appeal no. 254/1989, it is clear that by decision of earlier suit the appellant / defendant was restrained from using the area and causing any interference in the property portion marked as A, B, C, D and E which was infront of plaintiff’s house and which included lane (chok) infront of it. By the decree in second suit what additional relief granted was to close the door in the said disputed portion which was on the eastern side of the house of 6 plaintiff. It may be noted that it is the case made out in the second suit that the door D2 was opened after the first suit was filed. So it was a new cause of action for which mandatory injunction could have been sought and granted. It cannot be said that there is any conflict in the two decrees passed by the first appellate court in the two appeals before it. In the first suit, the defendant was restrained from using the open space infront of plaintiff’s house and thereby defendant was prevented from even using the open space infront of the door D2 which is said to be subsequently opened. So, I am not satisfied that there is any conflict between the two decrees or there is any bar of principle of res-judicata. In the facts and circumstances of the case, I have not be satisfied with the submissions made by the advocate for the appellant. Both these appeals stand dismissed. ( P. R. BORKAR, J.) dyb/office/sa254.89.odt