High Court
Legal Reasoning
1927-sa-824-2016.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD927 SECOND APPEAL NO. 824 OF 2016Eknath S/o. Ananda Bondedied through his legal heirs:1. Shantabai Wd/o Eknath Bonde Age : 75 years, Occu: Household,2. Bhagwan S/o. Eknath Bonde Died through his legal heirs: 2-A Shriram S/o Bhagwan Bonde, Age 22 years, Occu : Education 2-B Lokesh S/o Bhagwan Bonde, Age 12 years, Occu : Education 2-B Krishna S/o Bhagwan Bonde, Age 10 years, Occu: education, 3. Sunandabai Mohan Rothe Age : 56 years, Occu : Household,4. Anandabai Kishor Kale Age : 54 years, Occ : Household,5. Shobhabai Ramesh Jagtap Age : 50 years, Occu : Household,6. Kokilabai Onkar Rothe Age : 48 years, Occu : Household, All R/o Kinhi Tq. Bhusawal District. Jalgaon...Appellants VERSUSRaghunath Ananda Bonde,Age- 66 Years, Occu- Agri.,R/o. : Kinhi, Tq. Bhusawal,Dist. Jalgaon....Respondent...Mr. S. B. Bhapkar, Advocate for AppellantsMr. Anand Chawre, Ms. Vandana Sadawarte, Mr. M. S. Sapkal forRespondent... 2927-sa-824-2016.odtCORAM :ROHIT W. JOSHI, J.DATE :2ND APRIL, 2025ORAL JUDGMENT .:1.The appellant in the present appeal is the original defendant andrespondent is the original plaintiff. The parties are related to each otherare real brothers. The plaintiff had filed a suit for declaration, partitionand separate possession against defendant being the Regular Civil SuitNo.32 of 2002. The said suit is decreed by the learned Trial Court videdecree dated 18.10.2011. The defendant challenged the said decree forpartition passed in the Regular Civil Suit No.32 of 2002 by filing anappeal being Regular Civil Appeal No.215 of 2011 which came to bedismissed vide judgment and decree dated 16.09.2016. Against theseconcurrent decrees the present appeal is filed.2.The suit property is an agricultural land bearing Gut No.25/4admeasuring 1.08 HR situated in village Kanhale, Tah. Bhusawal, Dist.Jalgaon. The learned Counsel for the appellant has raised two principalcontentions in the present appeal. He has drawn my attention to theearlier Civil Suit filed by respondent/plaintiff being Regular Civil SuitNo.155 of 1994 with respect to the suit property. Both the plaintiff anddefendant were parties to the said Suit. In the said Suit, the plaintiffhad come up with the contention that both the brothers i.e. plaintiffand defendant had half share each in the suit property which was 3927-sa-824-2016.odtseparately demarcated by them by dividing the suit property. Theplaintiff claimed that half portion towards the northern side of theproperty was in his possession, whereas, the other half portion on thesouthern side was in possession of the defendant. The plaintiffcontended that the defendant i.e. his brother was creating obstructionin possession and peaceful enjoyment of the half portion on thenorthern side of the suit property and therefore the earlier suit wasfiled seeking a declaration and consequential relief of perpetualinjunction. The prayer clauses in the earlier Civil Suit i.e. Regular CivilSuit No.155 of 1994 read as under:-(a) It will be declared that the plaintiff is in lawful possession ofthe suit property i.e. half portion admeasuring 0.54 HR on thenorthern side in land bearing Gut No.25/4 totally admeasuring1.08 HR situated in village Kanhale, Tah.Bhusawal, Dist. Jalgaon.(b) Grant a decree for perpetual injunction restraining thedefendant as also his servants or agents from disturbingpossession of the plaintiff over the suit property.3.The said suit was dismissed by the learned Civil Judge, JuniorDivision, Bhusawal vide judgment and decree dated 24.11.1999. It isheld that the defendant was in possession of the entire property in as 4927-sa-824-2016.odtmuch as the plaintiff himself had delivered possession of the suitproperty i.e. half share in Gut No.25/4 to the defendant. In that view ofthe matter it was held that the plaintiff was not entitled for the relief ofdeclaration and perpetual injunction as prayed in the said Suit. It isadmitted position on record that the said judgment and decree hasassumed finality in as much as the plaintiff has not challenged theaforesaid decree passed against him.4.The plaintiff has subsequently filed a suit for partition andseparate possession with respect to the same property being RegularCivil Suit No.32 of 2002. The prayers in the Regular Civil Suit No.32 of2002 are as under :-a) pass a decree for declaration that the plaintiff has half sharein the suit property described in paragraph No.1 of the plaint.b) grant a decree for partition and separate possession withrespect to the suit property granting half share in the suitproperty or such appropriate share to which he may be entitledc) in the event it is not possible to partition the propertyphysically, partition be effected in accordance with theprovisions of the partition Act.5.The said Civil Suit came to be decreed by the learned Trial Court 5927-sa-824-2016.odtand the appeal preferred by the defendant is also dismissed.6.In the light of aforesaid developments, the learned Advocate forthe appellant/original defendant has vehemently argued that thesubsequent Suit was barred by Section 11 of the Code of CivilProcedure, 1908 (for short “CPC”). The contention of the learnedAdvocate is that once declaration of ownership sought in the earliercivil suit was refused to the plaintiff, subsequent suit for the same reliefcould not have been entertained.7.I have perused the prayer clauses in both the Civil Suits. Theprayer clauses in earlier Civil Suit are a part of the decree which is atExhibit-60. Perusal of the judgment at Exhibit-59 and extract of theplaint which is a part of the decree at Exhibit-60 will indicate that theplaintiff had come up with a specific case that he was in possession ofnorthern half portion of the suit property and prayed for a decree ofperpetual injunction restraining defendant from disturbing hispossession over the same. As stated above, the said suit is dismissedholding that the defendant was in possession of the entire property. Theprayer clause in the present suit is materially different in as much asthe plaintiff now seeks a decree for partition and separate possession.He is not claiming to be in possession of any specific portion of the suitproperty as he did in the earlier Civil Suit. The issue to be considered is 6927-sa-824-2016.odtas to whether the relief sought in the present suit was sought andrefused in the earlier suit. If that be so, the present suit will be hit byres judicata. However, if the answer is in the negative then the presentsuit will be maintainable.8.Having perused the judgment and decree in the earlier suit andplaint in the present suit, particularly the prayer clauses, I am of theopinion that the present suit will not be hit by Section 11 of the CPC. Inthe earlier suit the plaintiff claimed to be in possession of a specificportion of the suit property. This contention of the plaintiff isdisbelieved and the suit was dismissed. In the present suit, the plaintiffhas prayed for decree of partition and separate possession withoutclaiming to be in possession of any specific portion in the suit property.The learned Courts held that both the brothers are co-owners of the suitproperty and accordingly granted a decree for partition in favour of theplaintiff. In the light and reasons recorded above, the decree forpartition which is granted is not hit by Section 11 of the CPC. 9.I have also perused the judgments passed by both the learnedCourts who have in my considered opinion rightly dealt with thecontroversy holding that the suit is not hit by Section 11 of the CPC. 7927-sa-824-2016.odt10.The other contention raised by the learned Advocate for theappellant is that the subsequent suit i.e. Regular Civil Suit No.32 of2002 out of which the present Second Appeal arises is hit by Order IIRule 2 of the CPC. Perusal of the written statement indicates thatdefence in respect to Order II Rule 2 of the CPC is not raised in thewritten statement. It is now well settled that a suit cannot be dismissedas barred by Order II Rule 2 of the CPC unless a specific contention inthis regard is raised in the written statement. 11.That apart, in my considered opinion the plea of res judicataunder Section 11 and plea of subsequent suit being barred by Order IIRule 2 of CPC are mutually destructive pleas. It is well settled that thejudgment operates as res judicata in a subsequent suit when an issuedirectly and substantially falls for adjudication in the earlier suit and itis decided on merits in the earlier suit. Adjudication on merit is a sinequa non to attract Section 11 of the CPC. As against this, Order II Rule2 of the CPC is a principle of law which states that all available reliefsmust be claimed by the plaintiff in the same suit and if he omits to seeka particular relief in the earlier suit then subsequent suit for the omittedrelief is barred. Thus, Order II Rule 2 of the CPC will be attracted whena particular relief is not claimed and therefore obviously notadjudicated. 8927-sa-824-2016.odt12.In my considered opinion even otherwise Order II Rule 2 of theCPC will not come to the aid of the appellant in the facts of the presentcase. In the earlier suit as noted above the contention of the plaintiffwas that he was in separate possession of a specific portion in the suitproperty. He sought a decree for perpetual injunction that he should notbe dispossessed from the said portion. Threat of dispossession was thecause of action in the earlier suit. As against this, in the subsequent suitthe case of plaintiff is that he has half share in the suit property and thecause of action is that despite a specific demand this half share is notgiven to him by his brother i.e. the defendant in the suit property. Theterm cause of action when construed in a narrow sense meansinfringement of a right. However, in a broader sense, the term cause ofaction includes facts constituting the right itself and the breach of thesaid right. Ready reference for this legal proposition can be had to thejudgment of the Hon’ble Supreme Court in the matter of A. B. C.Laminart Pvt. Ltd. & Anr. Vs. A. P. Agencies, Salem1.13.The right claimed in the subsequent suit is a right to seekpartition of property jointly held whereas the right in the earlier suitwas protection of possession of a property which was alleged to be inexclusive possession. The plaintiff failed to prove his separatepossession over a de-marketed portion in the earlier suit and therefore1AIR 1989 Supreme Court 1239 9927-sa-824-2016.odtthe said suit was dismissed. This cannot be a ground to prohibit filingof a fresh suit of partition and separate possession. In that view of thematter the contention of the learned Counsel for the appellant that thesuit is hit by Order II rule 2 of the CPC is also liable to be rejected. 14.It needs to be mentioned that right to seek partition and separatepossession of a property is a right of recurring nature. Till such time asa property remains joint, co-owner has a right to seek partition andseparate possession of the property. It has been held by a catena ofjudgments that principles enshrined under Order IX Rule 9 and OrderXXIII Rule 1 of the CPC are not applicable to suits for partition.15.In view of the aforesaid, in my considered opinion no substantialquestion of law arises for consideration in the present Second Appeal.16.The Second Appeal is therefore dismissed. 17.At this stage, learned Counsel for the appellant makes a requestto continue the interim order dated 05.12.2016 for a period of eightweeks from today. Although, the prayer is vehemently opposed, havingregard to the fact that the interim relief is operating for a period ofaround eight years, I am inclined to extend interim relief for a furtherperiod of eight weeks.
Decision
10927-sa-824-2016.odt18.Pending Civil Applications, if any, stand disposed of.[ROHIT W. JOSHI J.] Narwade/