1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL No.546/06. Smt.Sonabai wd/o Harichandra Chavan & ors. .vs. Bhagirathi Devaji Chauhan and 4 ors. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 6th February, 2008. 1. Heard Mr.V.K.Paliwal, Advocate for the appellants and Mr.M.M.Agnihotri, Advocate for the respondents. 2. This second appeal is at the instance of the appellant/defendant against whom a decree for declaration of ownership has been passed. 3. The respondents/plaintiffs instituted a civil suit for declaration that they are the owners of the property and appellants/defendants have no concern whatsoever with the suit property. 4. The defendant had resisted the suit by filing 2 the written statement and contended that he was real brother of Dewaji and that, there was partition between him and Dewaji in 1957. He also contended that Harichandra – the defendant had filed a rent control proceedings against the tenant in respect of the suit house and plaintiff Dewaji filed an application under Order 1 Rule 10 before the Civil Judge, before whom the civil suit for eviction was pending. The application was rejected. It is the contention of the defendant that that fact must go against the plaintiff and filing of civil suit must operate as res judicata. The courts below have held that the findings recorded by the Rent Controller as well as in the suit do not operate as res judicata. 5. The courts below have held that the rent control proceedings were essentially between the landlord and the tenant and therefore, the question of ownership was not involved in the proceedings and further Dewaji was not party to the rent control proceedings and therefore, finding in those proceedings cannot operate as res judicata. I find that these observations of the court below were right. Further, Harichandra had filed a civil suit for eviction against the tenant and for arrears of rent. Although the application filed by Dewaji for his addition as party to the suit was rejected, that would not come in the way of plaintiff, as that was the suit essentially 3 between the landlord and the tenant. But the fact remains that Dewaji was not party to that suit and therefore, any finding in that suit cannot operate as res judicata against Dewaji. This finding of the courts below cannot also be faulted with. 6. The learned counsel for the appellant submitted that there was a partition between the two brothers and in that partition the property had fallen to the share of Harichandra. The trial court has held that the alleged partition-deed was not proved by the defendant and since no proof of partition has been offered, there was no question of holding Harichandra to be the owner of the suit house. In fact, the trial court has held that Harichandra had even failed to prove that he was the real brother of Dewaji. Since pedigree itself was not proved, there was no question of there being any partition between Dewaji and Harichandra. Learned counsel for the respondent submitted that the appellant/defendant cannot agitate this point before this court on account of the fact that such point has not been agitated before the first appellate court. After having gone through the judgment of first appellate court, it is apparent that the only point that was raised before the first appellate court was with regard to the decision of the rent controller and civil suit operating as res judicata. As this point was not raised before 4 the first appellate court, I find that appellant cannot now agitate other point except with regard to res judicata. As far as the res judicata is concerned, the courts below were right in rejecting the contention. There is no substantial question of law involved in the appeal. The appeal is dismissed in limine. JUDGE. pzc