Bombay High Court
Narendra Gopal Kene (Since Deceased ... vs Balaram Shankar Kene And Ors on 24 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:4238
25-SA-581-2014.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.581 OF 2014
Pandurang Sitaram Kene
(Since deceased thr. his Lrs's)
Bharat Pandurang Kene & Ors. ...Appellants/
Applicants
Versus
Balaram Shankar Kene & Ors. ...Respondents
WITH
INTERIM APPLICATION NO.18196 OF 2022
IN
SECOND APPEAL NO.581 OF 2014
Narendra Gopal Kene ...Applicants
In the matter between
Pandurang Sitaram Kene
(Since deceased thr. his Lrs's)
Bharat Pandurang Kene & Ors. ...Appellants
Versus
Balaram Shankar Kene & Ors. ...Respondents
--------------------
Adv. Sanjay S. Patil for the Appellants.
Mr. Kunal Bhanage i/b Mr. Akshay Pawar a/w Mr. Priyanka
Acharrya for the Respondents.
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 24, 2024
P. C. :
1. At the outset, learned counsel for the Appellant seeks leave to carry
out amendment for bringing on record the legal heirs of deceased
25-SA-581-2014.doc
Respondent No. 2. Leave as sought is granted. Amendment to be carried
out forthwith.
2. Being dissatisfied with the Judgment dated 21st December, 2023 in
Regular Civil Appeal No. 39 of 2005 dismissing the Appeal thereby
confirming the Judgment of the Trial court dismissing the suit, the
original Plaintiffs are before this Court.
3. The facts stated briefly are that Regular Civil suit No. 296 of 1997
was filed by the Plaintiff seeking partition and separate possession of
Plaintiff's half share in the suit land described as suit land No.I in the
plaint and seeking declaration in respect of properties described as suit
land No.II and permanent injunction. The case of the Plaintiff was that
the suit land No.I which comprised of 8 landed properties were the
ancestral properties of the Plaintiffs and the Defendant and that the
Plaintiffs are entitled to claim half share. As regards the properties
described as suit land No.II, the same comprised of 11 lands which the
Plaintiffs claimed to be their self acquired ownership properties procured
by their father from his own income.
4. The pleadings indicate that one Dharma Bendu Kene was the
common ancestor of the Plaintiff and Defendant having two sons and
three daughters. The Plaintiffs are the legal heirs of Sitaram and the
25-SA-581-2014.doc
Defendants are the legal heirs of Shankar. It is pleaded that as regards the
suit land No.I, Shankar and Sitaram were the joint owners and were
cultivating the suit land No.I as members of undivided Hindu family and
that after demise of Shankar, the names of the Defendants are mutated. It
was pleaded that after the demise of the Defendant's father, the names of
the Defendants was wrongly mutated in respect of suit land No.II which
was the self acquired property of Sitaram. It was pleaded that all the 19
lands i.e. suit land No.I and II are wrongly mutated as joint family
properties. It was pleaded that the Defendants in order to grab the suit
land No.II were pretending to have share in it.
5. The suit came to be resisted by the Defendants. It was contended
that both the suit land Nos.I and II were the joint family properties of
Shankar and Sitaram. It was pleaded that in 1942 there was partition
between Shankar and Sitaram in respect of suit land No.I and II and suit
land No. I was allotted to the name of Shankar whereas the jointly
purchased suit land No.II was allotted to the name of Sitaram. It was
pleaded that at that time there was partition of the dwelling house equally
and half portion was allotted to the share of Shankar and half portion to
the share of Sitaram. It was contended that the Defendants do not claim
any right in suit land No.II.
6. The parties went to trial and the Trial Court negated the issue as
25-SA-581-2014.doc
regards the suit land No.I being the ancestral property, and that suit land
No.II are the self acquired properties. The Trial court answered in
affirmative the issue that the suit properties were earlier partitioned. As
regards the issue of the suit being barred by principle of res judicata, the
same was answered in the affirmative. After considering the evidence, the
Trial Court dismissed the suit.
7. The Plaintiffs filed Special Appeal No. 39 of 2005 against the
Judgment of the Trial Court which came to be dismissed with cost.
8. Heard Mr. Patil, learned counsel for the Appellants and Mr.
Bhanage, learned counsel for the Respondents.
9. Learned counsel for the Appellants submits that the substantial
question of law arising in the present case is whether the bar of res
judicata would apply when the earlier suit was filed for injunction and the
instant suit is filed for partition and declaration. He would submit that for
res judicata to apply, it is necessary that the issue in the subsequent suit is
directly and substantially in issue in the former suit between the parties
and unless the same is demonstrated the bar of res judicata would not
apply. He has taken this Court minutely through the findings of the Trial
Court on the issue of res judicata.
10. Considered the submissions and perused the record.
25-SA-581-2014.doc
11. The admitted position is that, prior to the filing of the instant suit,
RCS No. 365 of 1981 and RCS No. 385 of 1986 was filed by the
Plaintiff. The certified copies of the Judgment in the suits as well as the
judgment of the Appellate Court of those proceedings were produced
before the Trial Court. As regards Regular Civil Suit No. 365 of 1981, the
suit was filed for injunction against the Defendants in respect of only one
land i.e. Survey No. 95, Hissa No. 29-A which came to be dismissed as
against which the Appeal also came to be dismissed.
12. As regards Regular Civil Suit No. 385 of 1986, the same was filed
by the Plaintiff seeking partition and separate possession of land bearing
Survey No. 95 Hissa No. 29-A. This suit also came to be dismissed as
against which Appeal right up to this Court came to be dismissed.
Considering the documentary evidence which has come on record, the
submission of learned counsel for the Appellant that the earlier suit was
only for injunction cannot be countenanced. RCS No. 385 of 1986 was
specifically filed for partition of only one property. In that case, the issue
was framed as to whether the land bearing Survey No.95, Hissa No. 29-A
is the only joint family property which remained to be partitioned. The
issue was framed in view of the contention of the Plaintiff therein that
only the suit land remained to be partitioned. In that suit, the contention
of the Defendant was the same as in the instant suit that there was a
25-SA-581-2014.doc
partition in the year 1942. In the Judgment, there is finding of the first
Appellate Court arising out of RCS No. 385 of 1986 that both Plaintiff
and Defendant had assessed factum of partition of their properties and
had upheld the partition in the year 1942 between the parties in respect of
the suit land No. 1 as well as suit land No. 2. That being so, the Trial
Court considering the judgment in the previous suit has rightly applied
the principle of res judicata as the issue as regards the partition and
separate possession of the partition was directly and substantially in issue
in the previous suit and was decided.
13. It is also required to be noted that in the year 1986, there was a suit
for partition filed in respect of only one property. If it was the contention
of the Plaintiff that there was no partition and there were other properties
other than survey No. 95, Hissa No. 29-A, in the instant case, the bar of
Order II Rule 2 of CPC would also apply.
14. Having regard to the finding of the Trial Court answering the issue
of res judicata based on the judgment and findings in the earlier suit, there
is no perversity in the findings of the Trial Court. The Appellate Court
has upheld the findings of the Trial Court in view of the specific
contentions of the Plaintiff in the earlier suit that there was a partition of
all properties except Survey No. 95 and Hissa No. 29A.
25-SA-581-2014.doc
15. In view of the above, as the documentary evidence has been
properly appreciated by the Trial Court and the Appellate Court, no
substantial question of law arises in the Second Appeal.
16. Appeal stands dismissed.
17. In view of dismissal of Second Appeal, nothing survives for
consideration in pending Applications, if any, and the same are disposed
of as such.
(SHARMILA U. DESHMUKH, J. )
