SHARDABEN DAMODARDAS PANDYA Vs. MUKUNDKUMAR DALSUKHRAM PANDYA

JUDGEMENT

(1.) THE appellants original plaintiffs have filed the Second Appeal u/s. 100 of the Code of Civil Procedure, challenging the order passed by the learned Presiding Officer, Fast Track Court No. 2, Kalol- Gandhingar in Regular Civil Appeal No. 51 of 1997 on 17th November, 2006, by which the judgment and decree of the 2nd Joint Civil Judge (J. D.) at Kalol passed in Regular Civil Suit No. 171 of 1990 is confirmed. This Court has issued notice on 04. 09. 2008. On issuance of notice, Mr. Prabhakar Upadyay, learned advocate has filed his appearance on behalf of the respondent/original defendant.

(2.) IT is the case of the appellants that the appellants/plaintiffs filed suit being RCS No. 171/90 for declaration to the effect that the defendant has no right to enter into the suit land bearing block Nos. 63/1, 63/2, 70 and 85/21 being ancestral land received by the plaintiffs in their share through their late father and also from creating any hindrances in their use and occupation thereof and for permanent injunction in the same terms with respect to the said lands in question situated and lying at village Mubarakpura, Tal. Kalol, District Gandhinagar on the strength of different revenue entries mutated from time to time.

(3.) PRIOR to filing of Regular Civil Suit No. 171 of 1990, the plaintiffs' late father had filed Civil Suit No. 177 of 1989 which was withdrawn seeking permission to file afresh suit which permission was granted unconditionally by the learned Civil Judge. Though the plaintiffs have asked for the liberty to file a fresh suit, the same was not granted. Without challenging the said order the plaintiffs have filed the present suit on the same subject matter and the learned Trial Judge has dismissed the said suit on the ground that the suit was not maintainable in view of the principle of Res Judicata. Being aggrieved by the said decision, the appellants have filed Regular Civil Appeal before the learned District Judge and the same also came to be dismissed. While dismissing the said appeal, the learned District Judge has specifically observed that it is clear and undisputed fact that the plaintiffs have miserably failed to establish their case under Order 23 of the Civil Procedure Code so far as maintainability of the another suit on the principle of Res Judicata is concerned, and also under the provisions of Order 2 Rule 2 of the Civil Procedure Code. The learned District Judge came to the conclusion that the impugned order and judgment is in accordance with law and there is no infirmity in the said order and judgment.