Smt. Pooja v. Langhe h

Legal Reasoning

1 SA 315.2012 judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO. 315 OF 2012WITH CIVIL APPLICATION NO. 6223 OF 20121.Anna Asaram Adhane,Age; 52 years Occ; Agri,R/o; Gadana, Tq. Khultabad,District; Aurangabad.2.Laxmibai w/o Anna Adhane,Age; 48 years, Occ; Agri,R/o; Gadana, Tq. Khultabad,District ; Aurangabad. 3.Rustum s/o Anna Adhane,Age; 45 yerars, Occ; Agri,R/o; Gadana, Tq. Khultabad,District ; Aurangabad.4.Radha w/o Rustum Adhane,Age; 40 years, Occ; Agri,R/o; Gadana, Tq. Khultabad,District ; Aurangabad.5.Raghunath s/o Anna Adhane,Age; 41 years, Occ; Agril,R/o; Gadana, Tq. Khultabad,District ; Aurangabad.6.Renuka w/o Raghunath Adhane,Age; 42 years, Occ; Agril,R/o; Gadana, Taluka Khultabad,District; Aurangabad. 2 SA 315.2012 judgment 7.Pandharinath s/o Anna Adhane,Age; 39 years, Occ; Agril,R/o; Gadana, Taluka Khultabad,District; Aurangabad.8.Rangnath s/o Anna Adhane,Age; 35 years, Occ; Agril,R/o; Gadana, Taluka Khultabad,District; Aurangabad.9Sarjerao s/o Asaram AdhaneAge; 60 years, Occ; Agril,R/o; Gadana, Taluka Khultabad,District; Aurangabad. …. DIED.Through Legal Representatives :-9-AKacharabai @ Yamunabai w/o Digambar Laggad,Age; 47 years, Occ; Agriculture,R/o; Bhavsingpura, Taluka and District Aurangabad.9-BPanchfula w/o Ramkrishna Nage,Age; 35 years, Occ; Agri,R/o; Bhagyauttam Niwas,6/7, N-6, Mathuranagar,Aurangabad.10.Bhagubai w/o Sarjerao Adhane,Age; 55 years, Occ; Agri,R/o; Gadana, Taluka Khultabad,District; Aurangabad.11.Ashok s/o Sarjerao Adhane,Age; 30 years, Occ; Agril,R/o; Gadana, Taluka KhultabadDistrict; Aurangabad. 3 SA 315.2012 judgment 12.Usha w/o Ashok Adhane,Age; 25 years, Occ; Agri,R/o; Gadana, Taluka Khultabad,District; Aurangabad.13.Mittu s/o Sarjerao Adhane,Age; 25 years, Occ; Agri,R/o; Gadana, Taluka Khultabad,District; Aurangabad.14.Krishna s/o Sarjerao Adhane,Age; 21 years, Occ; Agri,R/o; Gadana, Taluka KhultabadDistrict; Aurangabad.15.Lata w/o Mittu Adhane,Age; 20 years, Occ; Agril,R/o; Gadana, Taluka Khultabad,District; Aurangabad....APPELLANTS(Orig. Defendants) VERSUS1.Namdeo s/o Ambadas Ubale,Age; 51 years, Occ; Agri,R/o; Khandipimpalgaon, Tq. Khultabad, District; Aurangabad.2.Jijabai w/o Jagannath Ubale,Age; 48 years, Occ; Agril,R/o; Khandipimpalgaon Tq. Khultabad, District; Aurangabad.3.Vitthal s/o Ambadas Ubale,Age; 45 years, Occ; Agril,R/o; Khandipimpalgaon Tq. Khultabad, District; Aurangabad. 4 SA 315.2012 judgment 4.Suryabhan s/o Ambadas Ubale,Age; 45 years, Occ; Agril,R/o; Khandipimpalgaon Tq. Khultabad, District; Aurangabad....RESPONDENTS(Orig. Plaintiffs) ……………………….Advocate for the Appellants : Mr. D.R. Markad h/f Mr.N.K. KakadeAdvocate for the Respondent No. 1 : Smt. Pooja V. Langhe h/fMr. N.D. Zinjurde Patil………………………..CORAM : SANDIPKUMAR C. MORE, J. Date of Reservation : 22.02.2024Date of Pronouncement : 23.02.2024JUDGMENT :1.Heard finally at the admission stage.2.The appellants who are the original defendants in RCSNo. 10 of 2003 have filed this Second Appeal, challenging the orderof the learned first appellate Court, whereby, the dismissal of theircounter claim in the aforesaid suit was upheld.3.The record shows that the present appellants are theoriginal defendants in RCS No.10 of 2003, which was filed by the 5 SA 315.2012 judgment present respondents/original plaintiffs for getting the decree ofperpetual injunction against the present appellants in respect ofsuit land Gut No. 47, to the extent of 3 Hectors and 54 Are. In thepresent suit, the appellants had filed their written statement andalso lodged counter claim against the presentrespondents/plaintiffs and thereby claimed perpetual injunctionagainst the respondents to the extent of 1 Hector 18 Are. Thelearned trial Court vide the judgment and decree dated 09.05.2005decreed the suit of the present respondents/original plaintiffs andrejected the counter claim of the present appellants. Feelingaggrieved with the rejection of the counter claim the presentappellants have filed Regular Civil Appeal bearing No. 284 of 2005,before the learned first appellate Court, but the same wasdismissed by the judgment and decree dated 15.10.2011. As such,the appellants have filed this appeal.4.The learned Advocate for the appellants submits that asubstantial question of law is involved in this matter is that, boththe Courts below have rejected the claim of injunction sought bythe present appellants against the respondents/original Plaintiffs,despite accepting sale deeds of the appellants in respect of the suit 6 SA 315.2012 judgment land to the extent of 1 Hector and 18 Are.5.On the contrary, the learned Advocate for therespondents/original plaintiffs has strongly opposed thesubmission made on behalf of the appellants by pointing out thatthe appellants themselves had filed one Regular Civil Suit No. 71 of1989, prior to the filing of the present suit for the same relief ofperpetual injunction as claimed by them in the present counterclaim, which was dismissed on merits and the appeal thereonpreferred by the present appellants was also dismissed. Not eventhis, but the Second Appeal filed against the dismissal of the saidsuit as well as appeal by the present appellants, also got dismissedat the hands of this Court. She produced on record the order ofthis Court in the aforesaid Second Appeal. Thus, she prays thatthe counter claim of the present appellants is definitely hit by theprinciples of res-judicata. Moreover, she pointed out that thoughthe sale deeds are there on record, by which the appellantsallegedly purchased certain area of the suit land from the erstwhileowner Pandharinath, but the same is not in existence at all, as itmight have gone into the ‘Nala, Road or River Area’.6.The record shows that the trial Court while rejecting 7 SA 315.2012 judgment Counter Claim of the appellants, in the present suit has givennegative findings on the aspect of Counter Claim being hit by theprinciples of res-judicata. But the learned first appellate Court hasgiven affirmative findings on the said aspect. Admittedly, the claimof the present appellants which is similar to their claim in theCounter Claim has been rejected in their earlier suit bearing RCSNo. 71 of 1989 up to this Court. I would like to reproduce the partof the order passed by this Court on 01.04.2009, in Second AppealNo. 844 of 2005, preferred by the present appellants, in respect ofdismissal of their earlier suit, which reads as under :“4)The learned Counsel for the appellants hasapparently missed the entire judgment of the firstappellate Court, in which though the pointsindicate about he judgment of the Court of firstinstance, in the body of the judgment, the firstappellate Court has discussed the evidence anddocuments, and appreciated as to itsmaintainability and the difficulties that theplaintiffs have faced. In paragraph 18, the firstAppellate Court, has accepted that based on thesale-deed and based on the finding recorded inR.C.S. No. 71 of 1989 it is not in dispute aboutthe ownership of the appellants/plaintiffs overthe suit land. However, the first Appellate Courtalso did not ind any document to come to theconclusion that after deleting entry in 1988-89,the appellants/plaintiffs have cultivated the landat any time. It was observed by the firstappellate Court and rightly that the landpurchased by the plaintiffs/appellants was notirrigated land (Pot Kharab), and it was not 8 SA 315.2012 judgment measured at the time of purchase by theappellants/plaintiffs. The vendor of theappellants, Pandharinath Ubale was having onlysymbolic possession over the suit land, asprovenly he was not in actual cultivation. It was,in this backdrop, he was not sure about theexact location and boundaries of the suit landwhich has reflected in the sale-deed dated07.01.1988. The subsequent correction deedabout the boundaries will not change colour andcomplexion in the matter. There is finding infavour of the plaintiffs about declaring theirstatus, however, there is cloud about thepossession over the suit property. Consequently,the Second Appeal lacks merit, it is dismissedwith civil application. The plaintiffs/appellantsare at liberty to adopt appropriate proceedings, ifadvised.”7.Thus, it appears that the present appellants in the firstround of litigation could not give any satisfactory evidence aboutthe location of their property. Even the subsequent correction deedwas not sufficient to point out the exact location of the property ofthe appellants. Moreover, the appellants in the present proceedingsthemselves have admitted the sale deeds of respondents/plaintiffs,by which they purchased the suit land. Therefore, when the samerelief as claimed by the appellants in the instant counter claim hasbeen rejected up to this Court, the appellants cannot claim samerelief again by filing counter claim in the instant proceeding,specially when they did not challenge the findings of this Court in 9 SA 315.2012 judgment their Second Appeal No. 844 of 2005. As such, no substantialquestion of law appears to be involved in the instant Second Appealand therefore, it stands dismissed along with pending CivilApplication No. 6223 of 2012.( SANDIPKUMAR C. MORE ) JUDGEmahajansb/