Indu Balaso Chougule & Ors. v. Hivara Bharma Sidh, Deceased

appearing for the parties were heard on 16th February,

2008. The Advocate for the appellants had made a request that the order on Appeal may not be passed as he was desirous of taking instructions from the appellants as regards withdrawal of the suit with a liberty to file a fresh suit. Advocate for the appellants states that the appellants have not given him instructions and, therefore, this Court may pass appropriate orders.

The appellants are the original plaintiffs. : 2 : According to the case of the appellants, their predecessor in interest was the exclusive owner of the property bearing City Survey No.97 at Kasbe Udgaon, Taluka Shirol, District Kolhapur. According to the appellants, they belong to Jain community and they are worshiping God Bharamdev. According to the appellants, their predecessor had constructed a small temple of the said God admeasuring 4 ft. x 4 ft. According to the case of the appellants, the 1st respondent posing himself to be the poojari of the deity and got entered his name in the city survey record. On the basis of the entry of his name, according to the appellants, the 1st respondent tried to obstruct their possession over the suit property. The 1st appellant and father of the 2nd to 5th appellants filed a suit in the year 1993 for declaration and injunction. According to the case of the appellants, after filing of the suit, the construction of temple was stopped by the respondents. On 29th November, 2000, the suit was dismissed for default. According to the case of the appellants, thereafter, the respondents again threatened to start construction of the temple. Therefore, the appellants filed a fresh suit in the year 2001 for declaration and injunction. The Trial Court dismissed the suit. The dismissal of the suit has been confirmed in the : 3 : Appeal by the learned Additional District Judge.

The submission of the Advocate for the appellants is that the Courts below ought not to have dismissed the suit by applying bar of Rule 9 of Order IX of the Code of Civil Procedure, 1908 as the cause of action for filing the present suit was completely different from the cause of action for filing the earlier suit in the year 1993. He submitted that the Courts below have committed an error by holding that the appellants have failed to prove their title to the suit property in as much as the entries in the revenue record were made behind the back of the appellants and/or their predecessors.

I have carefully considered the submissions. It is not in dispute that the suit property subject matter of both the suits is the same. The earlier suit was dismissed by invoking Rule 8 of Order IX of the Code of Civil Procedure, 1908. In the said suit, there was a prayer for declaration of ownership apart from the prayer for perpetual injunction. In the present suit also there is a prayer for declaration of ownership and for perpetual injunction. The Appellate Court observed that for filing a suit for perpetual injunction, there can be a recurring cause of action. : 4 : However, in the present case, the respondents had started construction of a temple in the year 1993 and there was no injunction granted in the earlier suit. The Appellate Court also noted that as in the earlier suit there was a prayer made for declaration, there could not have been a fresh suit filed claiming the same relief of declaration.

As the present suit was based on cause of action of the year 1993, the Appellate Court held that the suit for declaration filed in the year 2001 was not filed within limitation.

It is very difficult to find fault with the impugned Decrees passed by the Courts below. No substantial question of law arises. Second Appeal is accordingly dismissed with no orders as to costs.

In view of dismissal of the Appeal, Civil Application No.1910 of 2006 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]

[ABHAY S. OKA, J.]