1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.136 OF 2009 Dattu s/o Shrihari Aghade, aged 50 years, Occ: Agri., R/o Newargaon, Tq. Gangapur, District Aurangabad. Appellant Versus 1 Shaikh Sardar s/o Shaikh Amir, (deceased), through L.Rs.: 1A Ismail Sk. Sardar, age: 32 years, Occ: Agril., 1B Ayub Sk. Sardar, age: 21 years, Occ: Agril., 1C Abeda Sk. Sardar, age: 60 years, Occ: Household; 1D Zubeda Sk. Sardar, age: 50 years, Occ: Household; All R/o Newargaon, Tq.Gangapur, District Aurangabad. 2 Pralhad s/o Shrihari Aghade, age: 60 years, Occ: Agri., R/o Newargaon, Tq.Gangapur, District Aurangabad. Respondents Mr.D.R.Irale Patil, advocate for the appellant. 2 CORAM: R.M.BORDE, J. DATE : 09.09.2009 P.C.: 1 Heard Shri D.R.Irale Patil, learned Counsel for the appellant. 2 This is an appeal by original plaintiff raising exception to the concurrent judgments delivered by both the Courts below. 3 Appellant – original plaintiff instituted Regular Civil Suit No. 17/96 claiming relief of declaration, issue of injunction and alternatively for possession of suit property. According to the plaintiff, he is owner of land G.No.246 to the extent of 1 acre 31 gunthas. The property is ancestral one belonging to plaintiff and his brother defendant no.2. According to him, Regular Civil Suit No.7/72 was filed by his brother defendant no.2- Pralhad against defendant no.1. However, according to him, he has not put his signature on the plaint. Said suit came to be decided holding that Pralhad i.e. defendant no.2 had agreed to sell suit land to father of defendant no.1. In fact, defendant no.2 Pralhad has no right to enter into such agreement. Subsequently, in the year 1994, plaintiff received summons of Regular Civil Suit No.132/94 presented by defendant no.1 against plaintiff and defendant no.2. Plaintiff contends that decree obtained in Regular Civil Suit No.7/72 is fraudulent and he is in actual possession over the suit land and his interest needs to be protected. 4 Defendants appeared and controverted contentions raised by plaintiff. 3 5 The trial Court, after considering evidence led by the parties, came to the conclusion that plaintiff has not established his case and as such, dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appal No.194/98, which came to be heard and disposed of by District Judge, Aurangabad, who was pleased to dismiss same by judgment and decree dated 02.02.2001. 6 I have perused the judgments delivered by both the Courts below. So far as presentation of Regular Civil Suit No.7/72 is concerned, same is admitted. However, plaintiff contends that he had not put his signature on the plaint in the said suit. The trial Court has perused the original record pertaining to Regular Civil Suit No.7/72 and has recorded a finding that signature of the plaintiff does appear on the plaint presented in the said suit. The contention raised by plaintiff in respect of fraud played by defendants in securing relief in Regular Civil Suit No.7/72 has not been substantiated by leading evidence. However, while dealing with Regular Civil Suit No.132/94, order of injunction has been clamped against plaintiffs, which came to be presented by defendant no.1. Thus, issue in respect of title as well as possession in relation to disputed property has been adjudicated in the earlier litigation. The first appellate Court, on consideration of relevant aspects, has reached to the conclusion that the findings recorded by the trial Court are proper. It has been observed by the first appellate Court that in Regular Civil Suit No.132/94, an issue was framed, as to whether plaintiff in the said suit i.e. defendant no.1 herein proves, by virtue of judgment in Regular Civil Suit No.7/72 dated 31.08.1976, 4 that he has become absolute owner of the suit field and the finding has been answered in affirmative. In this view of the matter, issue in respect of ownership in relation to disputed property is not available for consideration in the instant case. 7 Considering all the relevant circumstances, I am of the opinion that findings recorded by the Courts below do not call for interference. No substantial question of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa13609