VAMAN KESHAV GODSE Vs. LAXMAN KESHAV GODSE

JUDGEMENT

(1.) THE present appellant had instituted Regular civil Suit Mo. 86 of 1973, whereby he had claimed partition and separate possession ot his share. The Respondent Nos. 1 and 2 are his brothers and Respondents Nos 3 to 5 are his sisters. The suit in question was resisted essentially by the brothers and one of the contentions raised was that the defendant No. 1 had earlier instituted a Civil Suit in respect of his share in the rent of a house that had been jointly held by the parties and the first floor of which had been given on rent. The learned trial juc ge framed the issues on the basis of the pleadings and one of the issue was with regard to the question as to whether the present suit was at all maintainable in law in view of the fact that the earlier Civil Suit no 89 of 1962 between the same parties and in respect of the property in dispute had been tried and decided on merits. It is this aspect of the matter alone that we are concerned with, in the present proceeding.

(2.) THE learned trial Judge after hearing the parties came to the conclusion that the earlier Civil Suit No. 89 of 1962 referred to by me would operate as res-judicata to the present proceeding. The reason for this is was principally because in the earlier proceeding undoubtedly there was a dispute with regard to the appointment of the rent recoverable from the premises and there were references to the fact that the house in question had been constructed out of the joint funds. The learned trial Judge also came to the conclusion that since there were references in the earlier judgment to the so called partition that is alleged to have taken place in the year 1957 that the present suit was not maintainable in law. He accordingly dismissed the suit on this ground alone. Effectively, the Appeal Court has confirmed this decision. The present Second appeal is directed against the appellate Judgment and order and assails the correctness thereof.

(3.) AT the hearing of the present appeal, learned Counsel appearing on behalf of the appellant has, in the first instance, placed reliance on a division Bench decision of this Court reported in 63 Bom L r,p. 152, in the case of Laxman Shivshankar Kumbhar v. Saraswati Chanbas appa Kumbhar. The Division Bench while considering the Bar under Section 11 of the Code of Civil Procedure observed as follows:-