1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 294 OF 1991 Keshavrao s/o Sawlahari Kalkar Age: 61 Yrs., occ. Agril. R/o Wakulni, Tq. And Dist. Jalna ... APPELLANT (Orig.Plaintiff) VERSUS 1) Gomtabai w/o Damodar Age: 48 Yrs., occu. Agril. 2) Dilip s/o Damodhar Age: 29 Yrs., occu. Agril. 3) Santosh s/o Damodhar Age: 19 Yrs., occu. Agril. 4) Bharti d/o Damodhar Age: 25 Yrs., occu. - 5) Sunita d/o Damodhar Age: 21 Yrs., occu. - 6) Anita d/o Damodhar Age: 17 Yrs., oucc. - U/g of Resp.No.1. All R/o Wakulni, Tq. And District Jalna. ... RESPONDENTS (L.rs. Of orig. Deft.) 2 ***** Mr.Vivek Bhavthankar, Advocate for Appellant; Mr. A.S.Barlota, Adv. h/for Mr.S.K.Barlota,Advocate for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 10 th June, 2009. JUDGMENT : 1) Heard learned Counsel for the parties. 2) The Judgment and decree dated 12.12.1990 in RCA No. 177/1983, confirming the Judgment and Decree in RCS No. 376/1976 passed by CJJD, Jalna, is subject of Second Appeal. 3) While admitting the appeal on 22 nd August, 1991, following substantial question of law was formulated : “Whether suit was barred under Section 47 of Civil Procedure Code.?” 4) The plaintiff Keshavrao filed a suit for declaration and injunction in relation to the suit property admeasuring 30 X 30 ft. surrounded by four walls, situate at village Wakulni by asserting that he has come in possession 3 of the said property by virtue of the sale deed dated 12.5.1971 having purchased the same from Deorao, Asaram and Ambadas for Rs. 1,000/-. The plaintiff asserted that he was in possession of the said property for 40 years. The cause of filing the suit was basically in relation to the execution proceedings in RCS No. 260/1964 moved by the defendants and on 18.9.1976, bailiff had been to the premises of the plaintiff to execute the decree passed in RCS No. 260/1964. The plaintiff meticulously avoided to show east- west length of the suit site when he tendered a map with the plaint, as could be seen by perusal of the map. Apart from that, the plaintiff was a party to earlier proceedings being RCS No. 260/1964. He was aware of the litigation, but still he got the property in the year 1971 from one of the parties of the suit and again tried to misled by describing incorrect boundaries of the suit property. The plaintiff’s claim of title through Asaram, as one of the vendor, was denied in RCS No. 260/1964. The description to which plaintiff was laying his hand was also found to be mismatched as the plaintiff deliberately avoided to show correct measurement of the boundaries. 5) The learned Judge, considering the legal position, found that the provisions of Section 47 of CPC are applicable in the matter as all the questions involved in the Execution 4 proceedings could have been adjudicated upon without resorting to an independent suit, the plaintiff having knowledge of this situation, choose to file application in terms of Section 47 of CPC. However, having lost there, he, as a last straw on the camel’s back, resorted to file the suit, which exercise is betrayal to the legal system. Consequently, both the Courts were just and correct in denying the contention raised by the plaintiff by simplicitor suit for injunction or declaration. I do not find there is any merit in the Second Appeal. The substantial question of law as formulated above will not arise as the learned Judge has considered provisions of Section 47 of CPC and such application moved by the plaintiff was negatived. He has availed that remedy. Independent remedy of suit was not available. Appeal dismissed with costs. ( K.U.CHANDIWAL) JUDGE bdv/office/sa294.91