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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.53 OF 1992
1 Rangrao Dhondiba Sawant,
2 Yuvraj Rangarao Sawant,
Since deceased through his L.R.
Smt. Suman Yuvraj Sawant.
3 Dattatraya Rangarao Sawant,
4
Kantilal Rangrao Sawant.
..Appellants.
Vs.
1 Chhagan Appa Sapkal,
2 Baban Appa Sapkal,
3 Sonab ai Appa Sapkal,
4 Krishnabai Dadsaheb Sawant.
..Respondents.
Mr. D.S.Sawant for the Appellants.
CORAM : R.S. MOHITE, J.
DATE : Reserved on 9.2.2010
Declared on 30.3.2010
JUDGMENT :
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1 This appeal has been filed by the
appellants impugning a judgment and decree passed
th
by 7 Additional District Judge, Pune on 21.7.1990
in Civil Appeal No.847 of 1985. The Appellant No.2
is daughter in law of Appellant No.1(Original
plaintiff) where as the Appellants Nos. 3 and 4 are
his sons. Original Appellant No.2 Yuvraj( deceased)
was defendant No.5 in the suit whereas appellant
Nos. 3 and 4 were the original defendants 6 and 7
in the suit. Defendant Nos. 5 to 7 were supporting
the plaintiffs.
2 Brief facts of the case are as under.
a) That in the year 1942 the plaintiff
Rangarao D.Sawant wanted to purchase a land bearing
Survey No.42/1/2/3 from Village Udhat from one
Govind Deshpande. He was however, short of funds.
One Appa Sapkal who was resident of nearby village
was plaintiff s friend. According to the plaintiff
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he and Appa Sapkal entered into an agreement
whereby Appa Sapkal would contribute 50% of the
purchase price. It was agreed that Appa Sapkal
would recover his contribution with interest from
the sale price of the produce from land which was
to be sold to three specified agencies. Initially
by a registered sale deed dated 22.5.1942, the
plaintiff and ig Appa Sapkal jointly purchased 8-
Acres of land from the aforesaid Govind Dehspande.
The owner Govind Deshpande thereafter sold 3-Acres
and 19-Gunthas of land to one Pore who in turn by a
further registered sale deed dated 23.1.1947 sold
the said land jointly to the plaintiff and Appa
Sapkal. It is an admitted position that, in so far
as registered sale deeds dated 22.5.1942 and
23.1.1947, the plaintiff and Appa Sapkal were joint
purchasers.
b) It is the plaintiff s case that some time
in March, 1960 Appa Sapkal made a statement before
the Tahsildar that he had recovered his share of
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the purchase price and therefore, land should be
transferred in the name of the plaintiff. This
statement according to the paintiff was made in
order to effect a revenue entry in the plaintiff s
favour. However, later on, Appa Sapkal changed his
mind and lodged a protest with the revenue
authorities.
c) In 1964,
ig Appa Sapkal filed a suit being
Special Civil Suit No.153/1964 for a declaration
that he had half share in the suit property. In
the said suit, present plaintiff filed a written
statement contending that Appa Sapkal had agreed to
transfer his half share to the plaintiff as he has
recovered his contriubution of the sale price. The
record indicates that the said suit was initially
dismissed on 29.4.1967. Appa Sapkal then carried
the matter to the High Court by filing First Appeal
No.195/1968 and the said first appeal came to be
allowed by this court on 14.12.1976. The finding
of the High Court was that there could be no
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transfer of the share by Appa Sapkal in favour of
the plaintiff unless there was a registered
document and therefore, Appa Sapkal continued to be
a half share holder in respect of the suit
proiperty. It appears that matter was carried upto
the Apex Court and the SLP was disposed off by ther
Supreme Court on 18.9.1978 with some modification.
The
finding
Supreme
of
Court
the
however,
High
did
Court
not
that
up
Appa
set
Sapkal
the
continued to be the owner of the half portion of
the suit property.
3 After this litigation was over, plaintiff
filed a suit on 27.4.1979 against the heirs of
Appa Sapkal, who had expired pending earlier
litigation, for a direction to execute a sale deed
in respect of the half share of the suit land as
aforesaid. This suit was decreed by the trial court
on 20.4.1985 but by the impugned judgment and
order, the first Appellate court allowed the appeal
and in such circumstances, this second appeal came
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to be filed.
4 Substantial questions of law on the basis
of which this appeal was admitted are as under.
a) Whether the plaintiff s suit is
hit by principles of res judicata when the
issues ig in earlier Suit
filed by the father of defendants herein
No.153 of 1964
are not directly in issue in this suit
though the present suit is between the
same parties?
b) Whether plaintiff is estopped from
claiming any relief in this suit in
respect of suit land in view of decision
in Suit No.153 of 1964 when the relief
granted to defendants father in earlier
suit were different from the reliefs
claimed by plaintiff in this suit?
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5 As regards the first substantial question
of law, in my view no error can be found with the
finding of the Appellate Court that the present
suit was hit by the principles of res judicata. It
is clear from the record that in 1964 a suit
bearing No.153 of 1964 was filed by Appa Sapkal for
declaration that he had a half share in the suit
property. In the said suit, it was open for the
present plaintiff to file a counter claim for the
relief which he has sought in the present suit.
This he did not do. This litigation was decided
upto the High Court and Appa Sakpal held to have
continued to hold half share in the suit property.
The present suit was filed by the plaintiff against
the heirs of Appa Sapkal for a relief which could
have been claimed by him by way of counter claim in
the earlier suit. The relevant part of section 11
of the Code of Civil Procedure 1908 and the
relevant explanation which is Explanation IV is as
under .
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11. Resjudicata- No court shall try
any suit or issue in which the matter
directly and substantially in issue has
been directly and substantially in issue in
a former suit between the same parties, or
between parties under whom they or any of
them claim, litigating under the same
title, in a court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raiseSd, and
has been heard and finally decided by such
court.
Explanation-IV-Any matter which might
and ought to have been made ground of
defence or attach in such former suit
shall be deemed to have been a matter
directly and substantially in issue in
such suit .
6 In my view, the cause of action for both
the suits were essentially events which occured
prior to the filing of the first suit i. e.
purchase of the land by a registered sale deed
dated 22.5.1942 and purchase of the remaining suit
land by a registered sale deed dated 21.9.1947. In
this view of the matter, it is clear that if at all
the present plaintiff wanted to obtain this relief
he ought to have taken the ground taken by him in
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the earlier suit and ought to have filed a counter
claim seeking the relief which he has sought in the
present suit. This has not been done. He cannot be
permitted to have a second round of litigation on
the same issue pertaining to his right in the suit
property. The first substantial question of law as
raised is therefore, without any substance.
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Once it is held that the plaintiff s suit
is hit by principles of res-judicata, the second
question whether the plaintiff is estopped from
claiming any relief in the suit, does not arise.
8. There is therefore, no substance in the
second appeal and the same is dismissed,
( R.S.MOHITE, J.)
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