Ramdas Govinda Sonwane And 3 ... vs Yashodabai Rama Peshane And Anr
2017 Latest Caselaw 7651 Bom

              sa64.04.odt                                                                                     1/10


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.


                                                 SECOND APPEAL NO.64 OF 2004


               APPELLANT:                                   1.        Ramdas   S/o   Govinda   Sonwane,   aged
                                                                      about 50 years, Occ. Service,
               (Original 
               Defendants)
                                                            2.        Ashok   S/o   Govinda   Sonwane,   aged
                                                                      about 45 years, Occ. Cultivator,
                                                            3.        Saraswatibai   w/o   Govinda   Sonwane,
                                                                      aged   about   70   years,   Occupation-
                                                                      Household,
                                                                      All   residents   of   Panjara   Post   Mohgaon
                                                                      Taluka Tumsar, Dist. Bhandara.
                                                            4.
                                                      Shobhabai   w/o   Babanrao   Duragkar,
                                                      aged   about   40   years,   Occ.   Household,
                                                      r/o Juni Magalwari, Nagpur. On R.A.
                                                                  
                      
                                                  -VERSUS-


               RESPONDENTS: 1.                                        Yashodabai   w/o   Rama   Peshane,   aged
               (Original                                              about   52   years,   Occ.   Household
               plaintiffs)
                                                                      Resident   of   Panjra,   Post.   Mohgaon
                                                                      (Mine) Tah. Tumsar.
                                                        2.            Sakhubai   w/o   Ramchandra   Ahirkar,
                                                                      aged   about   45   years,   Occ.   Cultivator,
                                                                      Resident of Subhash Ward, Tumsar Tah.
                                                                      Tumsar Dist. Bhandara (M.S.) On R.A.
                                               
                                                                  

              Shri S. P. Kshirsagar, Advocate  for the appellants.



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              Shri K. S. Motwani, Advocate for the respondents.



              CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 04-09-2017 DATE ON WHICH JUDGMENT IS PRONOUNCED: 28-09-2017

ORAL JUDGMENT :

1. This appeal filed under Section 100 of the Code of

Civil Procedure, 1908 is by the original defendants who are

aggrieved by the decree for possession passed by the trial Court in

favour of the respondents - plaintiffs which has been confirmed by

the first appellate Court.

2. Brief facts giving rise to the appeal are that the

plaintiffs are the daughters of one Parasram Sonwane. Their father

was the owner of Gut No.102 admeasuring 0.60R land at village

Panjra. On 15-4-1985, the plaintiffs had purchased the aforesaid

suit property from their father for a consideration of Rs.1000/-.

The sale deed was got executed and it was duly registered.

According to the plaintiffs, in the month of July 1985 one Govinda

Sonwane took forcible possession of the suit property and did not

permit the plaintiffs to cultivate the same. After his death his sons

came in possession. Said Parasram expired on 18-4-1989. Thus,

on 26-6-1991, the daughters of said Parasram filed suit for

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possession based on title.

3. The defendants filed their written statement at

Exhibit-34. According to them, the sale deed relied upon by the

plaintiffs was without consideration. According to them, said

Parasram had executed an agreement of sale on 19-1-1973 in

favour of the defendants' father and since that day, the defendants

were in possession of the suit property. Though the defendants

sought to have the sale deed executed in their favour, Parasram

did not do so during his life time. It was then pleaded that

Parasram alongwith the husband of the plaintiff no.1 had filed

Regular Civil Suit No.47/1984 for declaration and perpetual

injunction with regard to the suit property. In that suit said parties

had applied for grant of temporary injunction and on 13-7-1984

the trial Court rejected the application for temporary injunction on

the ground that the plaintiffs were not in possession. It was then

pleaded that though said suit was pending, the present suit has

been filed. After filing of the present suit, the earlier suit being

Regular Civil Suit No.47/1984 was disposed of as having abated

on 21-2-1992. It was, therefore, pleaded that the subsequent suit

was barred by the principles of res judicata. It was also barred by

limitation as the defendants were in possession through their

father since 19-1-1973.

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4. After the parties led evidence, the trial Court held that

the plaintiffs had title to the suit property in view of the sale deed

dated 15-4-1985 executed in their favour. It was further held that

the defendants and prior to them, their father was not in

possession of the suit property. The suit was accordingly decreed.

The appellate Court confirmed this decree.

5. The following substantial question of law was framed

while admitting the appeal:

Whether the legal representatives of the deceased-plaintiff, who allowed the earlier suit to abate, be entitled to re-agitate the same cause and seek a relief, which the deceased-plaintiff in the earlier suit had omitted to claim in view of the provisions of Order II Rule 2 of the Code of Civil Procedure?

6. Shri S. P. Kshirsagar, learned Counsel for the

appellants submitted that the father of the defendants - Govinda

was in possession since the year 1973. In the earlier suit being

Regular Civil Suit No.47/1984 filed by the plaintiffs' father -

Parasram while deciding the application for temporary injunction

it was held that the plaintiffs were not in possession. The present

suit that was filed on 26-6-1991 for possession was thus barred by

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

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1908 (for short, the Code) as the plaintiff's father ought to have

sought the relief of possession which was not sought. The cause of

action as well as the subject matter of the prior suit and the

present suit were identical. It was necessary for the plaintiff's

father to have sought possession of the suit property in the earlier

suit, but only a prayer for declaration and permanent injunction

was made. Though the earlier suit was disposed of as having

abated, the bar to entertain the subsequent suit was attracted

under provisions of Order II Rule 2 of th Code. In that regard, the

learned Counsel placed reliance on the decisions in Dayaram

Raghobaji Belsare vs. Vishrantibai George Lavet 1990(1) Mh.L.J.

227, Chhabutai vs. Bakulabai 2006(5) Mh.L.J. 732 and SNP

Shipping Services Pvt. Ltd and others vs. World Tanker Carrier

Corporation 2000 (2) Mh.L.J. 570. It was thus submitted that both

the Courts committed an error in passing a decree for possession in

such a suit.

On the other hand, Shri K. S. Motwani, learned

Counsel for the respondents - plaintiffs submitted that the present

proceedings were maintainable and they were not hit by the

provisions of Order II Rule 2 of the Code. Both the Courts had

held that the defendants were not in possession of the suit

property and had thus decreed the suit in favour of the plaintiffs.

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The cause of action for the present suit was different and distinct

from the cause of action in the earlier suit. For said purpose, the

learned Counsel placed reliance on the decision in Alka Gupta Vs.

Narender Kumar Gupta (2010) 10 SCC 141. It was then submitted

that as the earlier suit was disposed of as having abated, the

subsequent suit was not barred by the principles of res judicata

inasmuch as the issues raised in the earlier suit were not finally

decided. He placed reliance on the decision in Inacio Martins Vs.

Narayan Hari Naik and others (1993) 3 SCC 123 in support of this

submission. It was therefore submitted that as the subsequent suit

was not barred, the decree passed therein was not liable to be set

aside.

7. Since the decree passed in favour of the plaintiffs is

sought to be challenged on the ground that the claim made in the

suit itself was barred by the provisions of Order II Rule 2 of the

Code, it would be first necessary to consider the legal position laid

down in that regard. In Alka Gupta (supra), the Hon'ble Supreme

Court referred to its earlier decision in Gurubax Singh Vs. Bhuralal

AIR 1964 SC 1810 wherein it was held that the defendant would

first have to establish precise cause of action upon which the

previous suit was filed and unless there is identity between the

cause of action on which the earlier suit was filed and that on

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which the claim in the latter suit is based, there would be no scope

for applying the bar under provisions of Order II Rule 2 of the

Code. It was then held that the defendant must plead such bar

and an issue must be framed so as to focus the parties on that bar

to the suit. The pleadings in the earlier suit would have to be

exhibited or atleast admitted by both parties and the plaintiffs

should have an opportunity to explain or demonstrate that the

second suit was based on a different cause of action. In the facts

of said case it was held that though there were no pleadings in that

regard by the defendant and no issue was framed, the Court

erroneously assumed that the plea of res judicata would include a

plea of the suit being barred under provisions of Order II Rule 2 of

the Code.

In the light of aforesaid legal position if the pleadings

of the defendants in their written statement are perused, it can be

seen that the defendants in paragraphs 10-A and 10-B have

pleaded that in Regular Civil Suit No.47/1984 that was filed by the

plaintiffs' father, the prayer for temporary injunction was refused

by inferring that Gut No.102 was in possession of the defendant.

In para 10, it was pleaded that the subsequent suit was thus barred

by principles of res judicata. In para 11, it was pleaded that the

suit was also barred by limitation. In the light of these pleadings, it

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is clear that the bar of the subsequent suit under provisions of

Order II Rule 2 of the Code was not specifically pleaded. No issue

in that regard was framed by the trial Court. Even before the first

appellate Court there is no ground raised that the suit was barred

under provisions of Order II Rule 2 of the Code. The grounds

raised are in regard to the plea of res judicata and bar of limitation.

Both the Courts have, therefore, not gone into the question as to

whether the present suit was barred in view of provisions of Order

II Rule 2 of the Code. In view of the aforesaid law as laid down, I

find that the defendants not having specifically pleaded as to the

applicability of such bar and both the Courts not having been

called upon to consider such bar. The defendants are thus

precluded from raising this contention for the first time in the

appeal. It may be noted that the Hon'ble Supreme Court in Alka

Gupta (supra) has clarified that the plea raised on the basis of res

judicata and the plea as to bar under under provisions of Order II

Rule 2 of the Code are two different pleas and one will not include

the other. Thus, merely by raising the plea that the subsequent suit

was barred on principles of res judicata, the defendants cannot

now contend that the bar under provisions of Order II Rule 2 of

the Code was also attracted.

8. The cause of action in Regular Civil Suit No.47/1984

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filed by the plaintiffs' father and his son-in-law was stated to have

arisen in the year 1983 and on 14-1-1984 when the father of the

defendant tried to take forcible possession of the suit property. The

cause of action for the present suit is stated to have arisen firstly

on 15-4-1985 when the plaintiffs' purchased the suit property

under a registered sale deed and also in July, 1985 when the

defendants dispossessed the plaintiffs. The trial Court in para 24

of its judgment has recorded a finding that even as per the

defendants' case they were not in possession in the year 1985

when they had taken forcible possession from the plaintiffs. The

appellate Court has confirmed this finding. Thus, even otherwise

I do not find that the defendants are entitled to succeed by

contending that the suit as filed for possession was barred under

provisions of Order II Rule 2 of the Code considering the distinct

causes of action.

9. In the light of aforesaid discussion and as the

necessary pleadings in that regard were not raised by the

defendants in their written statement the ratio of the decision in

Dayaram Belsare, Chhabutai Ingole and S.N.P. Shipping Services Pvt.

Ltd. cannot be made applicable to the facts of the present case.

Hence, subsequent abatement of Regular Civil Suit No.47/1984 on

21-2-1992 is of no consequence in the aforesaid facts. The

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substantial question of law is answered by holding that the bar to

the present suit under provisions of Order II Rule 2 of the Code has

not been made out and the same would not preclude the plaintiffs

from claiming possession of the suit property.

10. In view of aforesaid, the second appeal stands

dismissed with no order as to costs.

JUDGE /MULEY/