1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 110 OF 2010 Smt. Sudha Vasantrao Patne & others .vs. Deorao Dadaji Mune & others Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Abhay Sambre, Advocate for appellants, CORAM : S.A. BOBDE, J. DATED : SEPTEMBER 17, 2010. The appellants/original defendants have preferred this appeal against the order dated 8.7.2010 passed by the District Judge, Pandharkawada allowing the appeal of the respondents/plaintiffs against dismissal of the suit and directing the trial Court for fresh decision in accordance with the law. The respondents/plaintiffs had sued the appellants/defendants in respect of obstruction said to have been caused by the appellants/defendants by which the respondents/plaintiffs were allegedly prevented from erecting a fence. The respondents further alleged that the appellants had wrongly erected 17 iron poles in the portion 2 of 6585 sq. ft. shown by letters ‘EFGHIQ’. The respondents, therefore, prayed for a mandatory injunction to direct the defendants/appellants to remove the said poles. The suit was resisted by the defendants who alleged that they had erected the iron poles on their own land for many years and that they had got possession of the land in execution of the decree in Regular Civil Suit No. 16/83. They, therefore, pleaded inter-alia that the suit was barred by principles of resjudicata. The trial Court dismissed the suit inter alia on the ground that the suit is barred by resjudicata, against which dismissal, the respondents filed an appeal and the appellate Court has been pleased to remand the suit to the trial Court for fresh decision in accordance with the law. I find from the order that the order of remand is based on the finding that the suit could not have been dismissed on the ground of resjudicata. The learned Counsel for the appellant fairly admitted that the property involved in the earlier suit and the property involved in the present suit is not the same, the property in the present suit being larger. In my view, the appellate Court has rightly held that the suit could not have been dismissed on the question 3 of resjudicata. The other reason given by the appellate Court for remanding the matter is the question of identification of property. The appellate Court had discussed the evidence in paragraph nos. 11 to 13 and has come to the conclusion that the trial Court ought not to have held the respondents/plaintiffs as not being the owners of the portion shown by letters ‘ABCD’ in the plaint map, particularly since the trial Court had not framed any issue regarding identification of the suit property. Having regard to the overall circumstances of the case, it is not necessary to interfere with the order in appeal by which the matter has been remanded to the trial Court. The appeal is hence rejected. Judge J.