Vitthal Ganpatrao Adhaoo & ... vs Shrikisan Nanaji Kondalkar & ...
2015 Latest Caselaw 341 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH, NAGPUR




                                                  
                            SECOND APPEAL NO.20 OF 2004




                                           
                             
          1.Vitthal s/o. Ganpatrao Adhaoo (Akre),
             Aged about 54 years, Occ.Cultivation,
             r/o. Paonoor, Tq. And District
                            
             Wardha.

          2.Sadashio s/o. Ganpatrao Akre,
             (Dead) through L.Rs. :-
      


             1. Smt.Vatsalabai wd/o. Sadashiv Akre,
   



                 Aged about 60 years, Occ.
                 Housewife.
             2. Krushnan w/o. Sadashiv Akre,
                 Aged about 40 years, Occ.Service.





             3. Mohan s/o. Sadashiv Akre,
                 Aged about 30 years, Occ.Household
                 work.
             4. Sau. Usha w/o. Bhaiyyaji Bankar,
                 Aged 45 years, Occ. Household work.





             5. Smt. Shobha wd/o. Dnyaneshwar Kadam,
                 Aged 35 years, Occ. Household work.

                 All r/o. Mahajanwadi, Hingna, Tq.
                 Hingna, Distt. Nagpur.   ..........     APPELLANTS




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                  // VERSUS //




                                                                               
          1.Shrikisan s/o. Nanaji Kondalkar,




                                                       
             Aged about 53 years, Occ.
             Cultivation, r/o. Paonoor,
             Tq. and Distt. Wardha.
          2.Bahinabai w/o. Mahadeo Jautkar,




                                                      
             Aged about 50 years, Occ.
             Household, r/o. Pawnoor, Tq.
             and Distt. Wardha. 
          3.Smt.Kasabai w/o. Namdeo Khatale,




                                           
             Aged about 55 years, Occ.Household,
             r/o. Ner Pinglai, Tq.Morshi, Distt.
                             
             Amravati.
          4.Smt.Mainabai w/o. Vitthalrao Kalaskar,
             Aged about 60 years, Occ.Household,
                            
             r/o. Ajni (Mothi), Tq. And Distt.
             Wardha.
          5.Smt.Godavari w/o. Pandurang Lokhande,
             Aged about 45 years, Occ.Household,
      

             r/o. Rasulabad, Tq.Arvi, 
             Distt.Wardha.                     ..........     RESPONDENTS
   



          -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                 Mr.S.D.Kshirszagar, Adv. for the Appellants.
                Mr.A.K.Waghmare, Adv. for the Respondents.





           -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                                  ********
                   Date of reserving the Judgment         :   3.9.2015.
                   Date of pronouncing the Judgment    : 16.9.2015.





                                                  ********


                                         CORAM     :  A.P.BHANGALE,  J.




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          JUDGMENT      :

1. This Second Appeal was admitted on 27.7.2007 on

the following substantial questions of law :

(a) Whether the plaintiff was entitled to institute the instant suit when the earlier suit filed

by the plaintiff was dismissed as withdrawn and the plaintiff had not sought liberty to file a fresh

suit and the same was not granted to the plaintiff ?

(b) Whether it can be said, in the facts and circumstances of the case, that the subject matter in this suit and the earlier suit was one and the

same and hence the present suit was barred under

the provisions of Order 23, Rule 1 of the Code of Civil Procedure ?

2. Heard submissions at the bar. It appears that, by the

impugned Judgment and Order passed in Regular Civil Suit

No.489 of 1987, the suit was partly decreed and the

defendants were directed to hand over peaceful and vacant

possession of the suit land bearing Survey No.166/3 to the

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plaintiff after the trial Court declared that the disputed way

is easement of necessity and the plaintiff is entitled to use

the said way. Consequently, the defendants were restrained

permanently from causing obstruction and interference to

the use of disputed way by the plaintiff personally or

through any one on his behalf. The trial Court while

deciding Regular Civil Suit No.489 of 1987 found that the

plaintiff is owner of the suit land bearing Survey No.166-3

under registered Sale deed dt.23.1.1981 and was in

possession of the land pursuant to agreement to sell

dt.25.1.1980. The trial Court was satisfied that the plaintiff

was dispossessed by the defendants from the suit field and

that the plaintiff is entitled to easement of necessity

regarding cart way of 8 ft. wide. Thus, the relief of

declaration and possession was granted in favour of the

plaintiff. The Judgment and Order passed by the trial Court

was questioned in Appeal u/s. 96 of the Code of Civil

Procedure in the District Court, Wardha bearing Regular

Civil Appeal No.33 of 1999. The first Appellate Court

confirmed the finding that the plaintiff is owner of suit land

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bearing survey no.166-3 under sale deed dt.25.1.1980 and

was dispossessed by the defendants after sale deed was

executed and it was held that the plaintiff is entitled to

right of way of 8 ft. wide. That being so, the appeal came to

be dismissed.

3. Against these concurrent findings of facts, this Second

Appeal is preferred on the aforesaid substantial questions of

law as formulated by order dt.27.7.2007 by this Court.

4. Mr.S.P.Kshirsagar, learned Counsel for the appellants

argued that the plaintiff was not entitled to institute the

suit on the ground that the earlier suit was withdrawn

without liberty to file fresh suit. According to

Mr.S.P.Kshirsagar, learned Counsel for the appellants, the

plaintiff is required to raise all grounds available to him on

the subject in dispute and non-inclusion of such grounds

available to him would amount to abuse of process of Court

as the plaintiff cannot institute several suits on the same

subject. The learned Counsel made a reference to the ruling

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in the case of Smithkline Beecham Consumer Healthcare

GMBHY and Others .vs. Hindustan Lever Limited and

another reported in 2002 (1) Mh.l.J. 453 to canvass the

provisions of Order 2, Rule 1 of the Code of Civil Procedure

which obliges the plaintiff to include all grounds available

to him in the suit.

5. Mr.Kshirsagar, learned Counsel also made a reference

to the ruling in the case of N.V.Srinivasa Murthy and

Others .vs. Mariyamma (Dead) by proposed L.Rs. and

Others reported in (2005) 5 SCC 548 to argue that under

Order 2, Rule 2 of the Code of Civil Procedure, there is a

bar to fresh suit in respect of the relief omitted.

6. Reference is also made to the ruling in the case of

Prahlad Singh .vs. Col. Sukhdev Singh, 1987-EQ(SC)-)-

252 to submit that a party cannot be allowed to re-agitate

the same matter again when the matter is already decided.

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7. Reference is then made by learned Counsel

Mr.S.P.Kshirsagar to the ruling in the case of Union of

India .vs. Nanak Singh reported in 1968-EQ(SC)-0-22U to

canvass the principle of finalty of decision after full contest.

The ruling in the case of Arjun Singh .vs. Mohindra Kumar,

1963-EQ(SC)-0-261 is also referred to.

8. Mr.S.P.Kshirsagar, learned Counsel for the appellants

also made a reference to the ruling in the case of Dayaram

Raghobaji Belsare .vs. Vishrantibai Deorge Lavet

reported in 1990 Mh.L.J. 227 to canvass the proposition

that when the earlier suit is decided in respect of the same

cause of action and the same is withdrawn, the subsequent

suit on the same ground is barred.

9. As against these submissions, Mr.A.K.Waghmare,

learned Counsel for the respondents contended that the

appellants did not come with clean hands before this Court

at the time of admission of the Second Appeal when the

appeal was admitted. According to him, the plaintiff did not

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withdraw any suit at any point of time. Earlier, the suit

bearing Regular Civil Suit No.158 of 1980 was filed by the

original land owners along with the plaintiff as transferee in

possession of the suit land and that suit was filed on the

ground that present appellants had started disturbing

passage AB used by vendors of the plaintiffs for more than

20 years. Cause of action for that suit arose on or about

11th March, 1980 and the suit claim therein was different

than the easement of necessity claimed in present

controversy. At that time, the present respondent/plaintiff

was not owner of the suit land but he was merely in

possession on the basis of agreement to sell dt. 25.9.1980.

The said Civil Suit was for declaration and injunction only

in which the trial Court had granted interim injunction in

respect of possession of the former land owners as well as

the plaintiff as one co-owner by its order dt.29.7.1980. The

appeal against such order of interim injunction when

challenged by Civil Appeal No.30 of 1980 in District Court,

Wardha was dismissed by District Judge, Wardha on

6.9.1980. Thus, there was injunction not to disturb the

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passage "AB" granted against the appellants, but later on,

after the sale deed was executed by former land owners in

favour of respondent no.1/plaintiff on 23.1.1981, the

plaintiff had sought amendment in the plaint which was

objected and the application for amendment was rejected.

Under these circumstances, respondent no.1 (plaintiff

herein) had no option but to file separate independent suit

based upon plaintiff's title of suit property for injunction,

possession and damages on the separate/different cause of

action which occurred in March, 1981. In the background

of these facts and circumstances, it is contended on behalf

of the respondents that concurrent findings of facts have

been recorded by both the Courts below in favour of the

plaintiffs and therefore, the Second Appeal is absolutely

without merits.

10. Mr.Waghmare, learned Counsel made a reference to

the ruling in the case of Maharashtra State Electricity

Board and another .vs. National Transport Company

reported in 1992 Mh.L.J. 1505 to canvass submission that

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subsequent suit based upon same transaction but arising

out of different cause of action is not barred under Order 2,

Rule 2 of the Code of Civil Procedure. The Division Bench

of this Court in para no.17 of the ruling made a reference to

the case of Mohammad Khalil Khan and Others vs.

Mahbub Ali Mian and Others reported in AIR 1949 PC 78

wherein various principles were mentioned to indicate that

distinct cause of action than the earlier cause of action can

entitle the plaintiff to sue afresh. The correct test is whether

the claim in the new suit is, in fact, founded upon cause of

action distinct from that which was foundation for the

former suit. It is, thus, submitted that the plaintiff cannot

be blamed in the facts and circumstances of the present

case to pray for relief of possession of the suit property

based upon different cause of action. Reference is also

made to the ruling in the case of Sidramappa .vs.

Rajashetty and Others reported in AIR 1970 SC 1059 (1)

to press this submission. Thus, where the cause of action,

on the basis of which the previous suit was brought, does

not form foundation of the subsequent suit and in the

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earlier suit, the plaintiff could not have claimed the relief

which is sought in the subsequent suit, the plaintiff's

subsequent suit is not barred by Order 2, Rule 2 of the Code

of Civil Procedure.

11. Mr.Waghmare, learned Counsel also submitted that

the defendants did not raise the issue as to bar of the suit in

the Courts below and cannot be allowed to canvass it at the

stage of Second Appeal as against Judgments recording

concurrent findings of facts for relief of injunction and

possession granted in favour of the plaintiff by both the

Courts below. It is submitted that burden was upon the

defendants to plead and establish bar of the subsequent suit

in view of the earlier suit. Nothing was brought on record

by the defendants to plead and establish bar to the suit as

canvassed under Order 2, Rule 2 of the Code of Civil

Procedure.

12. I have perused the rulings cited at the bar. One

cannot dispute the proposition that the subsequent suit

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based upon the same transaction but arising out of different

cause of action is not barred under Order 2, Rule 2 of the

Code of Civil Procedure. Perusal of the Judgment by the

Courts below and concurrent findings of facts recorded as

to possession of the suit land bearing Survey No.166-3

admeasuring 1.62 acres, out of which Survey No.166-1 was

admeasuring 0.88 acres and finding as to existence of

easement of necessity as claimed for passage way of 8 ft.

vide necessity of use of way through land bearing Survey

No.166-1 along with its north-south dhura from eastern

direction. The trial Court as well as the first Appellate Court

found that the plaintiff is owner of suit land bearing Survey

No.166-3 under registered Sale deed dt.23.1.1981 and was

entitled to the right of way as easement of necessity

regarding cart way of 8 ft. vide. Thus, the plaintiff was

granted decree of declaration and relief of possession in

respect of the suit way by concurrent findings of facts. The

plaintiff led evidence of his vendors/original owners of the

land who sold the land to the plaintiff. The defendants

could not point out any alternate way for the use of the

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plaintiff to approach the suit land purchased by him. In the

facts and circumstances, therefore, there was no legal bar to

file fresh suit for declaration and injunction. That being so,

the plaintiff was entitled to institute Regular Civil Suit

No.498 of 1987 in the Court of Joint Civil Judge (Jr.Dn.),

Wardha with a prayer for possession of the suit land and

claiming easement of necessity in respect of cart way of 8

ft. width to claim declaration, possession and permanent

injunction in respect of the same. In view of the concurrent

findings of fact that the plaintiff is owner of the suit land

bearing Survey No.166-3 under registered Sale deed

dt.23.1.1981 and that he was entitled to right of easement

of necessity regarding cart way of 8 ft. width as easement of

necessity, the decree passed by the trial Court and

confirmed by the first Appellate Court would not require

any interference in this Second Appeal as nothing was

brought on record to indicate that institution of Regular

Civil Suit No.489 of 1987 was barred, as contended by the

appellants. The substantial questions of law are, therefore,

answered against the appellants.

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13. Even otherwise, the Second Appeal U/s.100 of the

Code of Civil Procedure is not a matter of right. It is only

when the substantial question of law is involved that the

Second Appeal can be entertained. Looking from any

angle, therefore, in view of the concurrent findings of facts

by the Courts and in the absence of substantial question of

law, the Second Appeal is dismissed with costs.

JUDGE

jaiswal