SHIVAJI BANAJI BHAGAT Vs. BABURAO SHIVAJI BHAGAT

JUDGEMENT

(1.) THE original defendant has by this second appeal challenged the judgment and decree dated 03/12/1990 delivered by joint Civil Judge, Junior Division, Akola asking him to deliver vacant possession of suit field on or before commencement of agricultural year i. e. 1st March, 1991. This judgment and decree in regular civil suit No. 69 of 1986 was then challenged by him by filing regular civil appeal No. 2 of 1991 and Additional District judge, Washim dismissed this appeal on 10/6/1991. This Court has on 25/7/1991 admitted the second appeal by formulating the following question: whether the finding as recorded in a suit filed in 1985 for declaration and permanent injunction would operate as res judicata?.

(2.) IN this background I have heard Advocate Shri khamborkar for the appellant-defendant and Advocate Shri deshpande for the respondent-plaintiff.

(3.) ADVOCATE Khamborkar points out that first suit in the chain of suits was filed by respondent vide regular civil suit No. 81 of 1983 for declaration and injunction. In that suit respondent also moved application under Order 39 Rule 1 and 2 of the Code of Civil procedure for protecting his alleged possession and that temporary injunction was rejected. He thereafter filed miscellaneous civil appeal before the District Court but then he withdrew it. After withdrawal, he filed regular civil suit No. 150 of 1985 with a case that on 15/3/1982 he had obtained physical possession of suit field from defendant and in June, 1984 he was forcibly dispossessed by him. Again the suit was for declaration and permanent injunction. The trial Court dismissed the suit and restrained respondent-plaintiff from interfering with physical possession of the present appellant over suit field. Advocate Khamborkar points out that Joint civil Judge, Jr. Dn. who dismissed said suit on 24/3/1986 also held that after 'kaul-patta' between the parties was over, possession of present appellant was as a tenant by sufferance, and therefore, he could not and cannot be removed without following due procedure of law. Said Court observed that plaintiff can take proper steps before appropriate authorities for getting suit land from defendant. Thereafter, the respondent-plaintiff has filed instant suit vide regular civil suit No. 69 of 1986 for possession. In that suit again very same events were pointed out and it was stated in paragraph 4 that plaintiff had secured possession on 15/3/1983 but thereafter defendant (present appellant) forcibly dispossessed him. The prayer was, therefore, to restore possession. The present appellant filed his written statement and opposed the suit but it came to be decreed and the appeal against it also came to be dismissed. Advocate Khamborkar, therefore, states that same cause of action on the basis of which regular civil suit No. 150 of 1985 was filed, was again used by the present respondent to file his latter suit i. e. regular civil suit No. 69 of 1986. He further states that in regular civil suit No. 150 of 1985 on 24/3/1986 the Court of Joint Civil judge Jr. Dn. gave finding that after 'kaul-patta' was over, possession of present appellant was as a tenant by sufferance. Advocate Khamborkar, therefore, points out that because of this, said Court expressed that plaintiff has to approach proper authority for recovery of possession in accordance with law and he contends that these observations are necessarily in the light of the provisions of Bombay Tenancy Agricultural land (Vidarbha Region) Act, 1958 and plaintiff, therefore, ought to have approached Tenancy tahsildar for recovery of possession. He states that regular civil suit No. 69 of 1986 filed by him was therefore, not maintainable and it was barred by provisions of res judicata. He points out that accordingly the question has been framed or formulated by this Court.