Bombay High Court
Anteshwar Vyankat Devangre And ... vs Ramesh Madhavrao Manthale on 10 April, 2017
Bench: S.P. Deshmukh
1 CRA/46/2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 46 OF 2017
1] Anteshwar Vyankat Devangre,
Age : 34 years, Occu.: Agri.,
R/o. Shirur Anantpal,
Tal : Shirur Anantpal, Dist. : Latur
2] Sangmeshwar Vyankat Devangre,
Age : 36 years, Occu.: Agri.,
R/o. Shirur Anantpal,
Tal : Shirur Anantpal, Dist. : Latur .. Petitioners
(Orig. Defendants)
Vs.
Ramesh Madhavrao Manthale,
Age : 45 years, Occu.: Agri.,
R/o. Shirur Anantpal,
Tal : Shirur Anantpal, Dist. : Latur .. Respondent
(Orig. Plaintiff)
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Mr. A.V. Indrale Patil, Advocate for the petitioners
Mr. C.R. Deshpande, Advocate for the respondent
----
CORAM : SUNIL P. DESHMUKH, J.
DATE : 10-04-2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard learned counsel for the parties finally, by consent.
3. The revision has been moved against order dated 04-02-
2017 on application exhibit - 78, in regular civil suit no. 374 of 2016
whereunder learned civil judge, senior division, Nilanga has rejected
the application of defendants.
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4. Exhibit - 78 had been moved by the defendants /
petitioners, requesting the suit be dismissed, by applying section 11
of code of civil procedure. It has been contended that suit property
had been subject matter of regular civil suit no. 131 of 1982.
Regular civil suit no. 131 of 1982 had been instituted by mother of
present plaintiff, alleging encroachment against father of present
petitioners/defendants. The suit was dismissed. Thereafter, the
property was transferred by mother to the son - present plaintiff.
In the circumstances, it appears to be a case of the petitioners, that
subject matter of the suit is the same. The parties since are deriving
title to the property from earlier defendants and plaintiff,
respectively.
5. Learned counsel for the petitioners submits that regular
civil suit no. 131 of 1982 was dismissed. Appeal against the same
bearing regular civil appeal no. 269 of 1984 was dismissed. Present
suit is between the same parties as stated above. Learned counsel
further submits that the issues in the earlier suit and the present suit
are practically similar and same. The court has also found that suit
property is one and the same. Having regard to aforesaid, according
to him, consideration that parties are different, is not a proper
consideration and exhibit - 78, under the circumstances, ought to
have been allowed.
3 CRA/46/2017
6. Learned counsel Mr. Deshpande appearing for the
respondent - plaintiff, however, contends that doctrine of res judicata,
sought to be invoked in the present matter is wholly misconceived.
According to learned counsel, the issue in respect of res judicata, is a
mixed question of law and fact, and, could not be decided without
affording opportunity to the parties to lead evidence. He further
points that the issue in this respect is already framed in the present
matter, and, it will have to be decided on its own merits with
reference to the evidence. He further points out that while the
earlier suit had been in respect of 27 Aar of land, whereas present
suit is for 23 Aar of land. Whether 27 Aar of land in the earlier suit
and 23 Aar of land in the present matter comprise the same land,
will have to be adjudged on merits and on evidence. Learned
counsel submits that the causes of action in the two suits are entirely
different. In the circumstances, order passed by the learned judge
is not liable to be faulted with. He therefore submits that the
revision application does not deserve any consideration.
7. After hearing learned counsel for the parties, the
submissions on behalf of the plaintiff - respondent appear to carry
lot of weight. By now, it is well settled proposition that issue of
question of res judicata is a mixed issue of fact and law and will have to
be decided by granting opportunity to the parties in respect of the
4 CRA/46/2017
same. The observations of trial court having regard to the
submissions advanced on behalf of the respondent about subject
matter are interlocutory in nature, and, do not have preempting
efficacy. However, ultimately, order passed, for the reasons as
submitted on behalf of the respondent, is not liable to be faulted
with.
8. The revision application, as such, is dismissed with no
order as to costs.
9. Observations in this order or for that matter, by the
learned judge in the impugned order, shall not influence the decision
making by the court, on merits.
10. Rule stands discharged.
[SUNIL P. DESHMUKH]
JUDGE
arp/
