LAXMANRAO MAHADEO NIKOSE Vs. NARAYAN MAHADEO NIKOSE

JUDGEMENT

(1.) Being aggrieved by judgment and decree dated 24.04.1992 passed by Civil Judge Jr. Dn., Saoner, dismissing the suit filed by the appellantplaintiff and confirmed in Reg. C. A. No.197/1992 passed by 2nd Addl. District Judge, Nagpur on 06.03.2000, the unsuccessful plaintiff had filed the instant second appeal. The learned counsel for the appellant, assailing the impugned judgment and decree passed by the lower appellate Court submitted that the lower appellate court has considered only the point of maintainability of second civil suit holding that the second civil suit in the same subject matter was not maintainable and thus dismissed the appeal preferred by the present appellant. She thus submitted that the lower appellate court did not discuss the single point on merits of the suit and dismissed the appeal on the sole ground. According to her, the lower appellate Court being the court of facts and the said appeal being one of right, the lower appellate court was under a duty to decide the suit on merits. Even otherwise, according to her the second suit was maintainable in the light of law in relation to such type of suits.

(2.) Per contra, Mr. Zoting learned counsel for the respondents, supported the impugned judgment and decree and argued that there are concurrent findings of facts as well as question of law recorded by both the courts and even if the lower appellate court has not discussed about merits of the matter, the learned trial Judge has recorded a detailed judgment on the merits of the matter and, therefore, the judgments recorded by both the courts below can well be supported and consequently there is no need to interfere in the matter in the second appellate jurisdiction. He, therefore, prayed for dismissal of the suit.

(3.) The present appellantplaintiff had filed Reg. C. S. No. 131/1974 in the same subject matter about partition of the suit property. During the pendency of the said suit, the present appellantplaintiff had filed application Exh.77 for withdrawal of the said Reg.C.S. No. 131/1974 stating therein that the dispute in the suit was settled out of the Court between the parties who are closely related and, therefore, there was a compromise and the plaintiff did not want to prosecute the suit against the defendants.