1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 162/2010 (Suresh Damodar Bende & another VERSUS Damodar Ramchandra Bende (dead) thr. Lrs Smt.Indirabai wd/o Damodar Bende & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri N.S. Bhattad, counsel for the appellants. Shri A.G. Gharote, counsel for the R-2 (B). CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 21, 2010 . Heard. The appellants are the original plaintiffs. They are the sons of one Damodar. They had filed a suit against Damodar and their real paternal uncle Bhaurao for a declaration that they are the owners of the suit property, which was purchased by them by the registered sale-deeds dated 30.03.1979 and 16.04.1979. According to the plaintiffs, the plaintiffs were illegally dispossessed by the defendant no.1, Bhaurao and, hence, the suit was filed for possession. It was the case of the plaintiffs that there was a partition between Damodar and Bhaurao in the year 1970. It was the case of the plaintiffs that the suit property was purchased by the plaintiffs from the funds of Damodar. 2 The defendants denied the claim of the plaintiffs and also denied that there was a partition between Damodar, Bhaurao and Krushna in the year 1970. It was pleaded by the defendant no.1-Bhaurao that in the year 1968, Krushna got separated from the joint family and only Damodar and Bhaurao were joint in properties and mess till the year 1980 when the properties jointly owned by them were partitioned. A plea of Res Judicata was also raised by the defendant no.1 in the first appellate Court as during the pendency of the first appeal, a civil suit bearing no.230/1982 between the parties was decided and it was held by the competent civil Court in that case that there was a partition between Damodar and Bhaurao in the year 1980 and not in the year 1970 as pleaded by Damodar and his sons. The defendant no.1 pleaded that the suit property was purchased in the name of Suresh and Vilas by Damodar from the nucleus of the joint family funds. The defendant no.1 sought for the dismissal of the suit. On an appreciation of the evidence on record, the trial Court decreed the suit of the plaintiff and held that the plaintiffs had succeeded in proving that they became the owners of the suit property by the registered sale-deed of the year 1979. The trial Court further held 3 that the plaintiffs had succeeded in proving that the defendant no.1 took unlawful possession of the suit property. The Court then held that the plaintiffs were entitled to certain amount towards loss of crops and damages. The trial Court decreed the suit of the plaintiffs. The trial Court, however, held that Benami Transaction Prevention Act, 1988 was not applicable to the facts of the instant case. The first appellate Court, on a re-appreciation of the evidence on record, came to a conclusion after considering the judgment passed in Regular Civil suit no.230/1982 between the parties that the plaintiffs had failed to prove that there was a partition between Damodar and Bhaurao in the year 1970. The first appellate Court held that a finding was recorded in Civil Suit No.230/1982 that a partition was effected in the year 1980 and since the judgment in Civil Suit No.230/1982 had attained finality, the findings in that judgment operated as Res Judicata in the instant case and were binding on the parties to the suit. The first appellate Court held that defendant no.1 Bhaurao succeeded in proving that the suit field was purchased from the nucleus of the joint family funds and was not purchased from the separate 4 property of Damodar. The first appellate Court also confirmed the findings of the trial Court that in view of the provisions of the Benami Transactions Prohibition Act, the plaintiff could not have claimed right, title and interest in the suit property because it was purchased in their names in the year 1979. On hearing the learned counsel for the parties and on perusal of the judgments passed by the trial and the first appellate Court, it appears that the first appellate Court did not commit any error in applying the principles of Res Judicata to the facts of this case to hold that Damodar and Bhaurao were joint till the year 1980 and the defendant no.1 Bhaurao had proved on the basis of the evidence that the suit property was purchased in the name of the plaintiffs from the nucleus of the joint family. The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The judgment reported in AIR 1991 Patna 53 (Rameshwar Mistry & another Versus Bebulal Mistry) and relied on by the counsel for the appellants is totally inapplicable to the facts of the case. 5 In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE