Dismissed

Vasant Eknathrao Acharaya v. Chabubai Sriram Sable and Ors.

Bombay HC17 Aug 2011SA/437/2008

Case brief

AI extract

What is this about?

In this second appeal challenging the dismissal of a suit for perpetual injunction, the single judge held that no substantial question of law arose as the lower courts did not consider the prior judgment because no pleadings were raised. The appeal was dismissed.

What did the court decide?

The second appeal is dismissed with the result that the impugned orders of the trial and first appellate courts are confirmed.

Vasant Eknathrao Acharaya Vs Chabubai Sriram Sable and Ors. — Property and Title | Bombay HC (2011)

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(1) SA 437.2008

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 437 OF 2008

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Vasant S/o. Eknathrao Acharaya
Age: 46 years, Occu.: Agriculture,
R/o : Acharaya Takli,

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Tq. Parli Vaijnath, District: Beed APPELLANT
 (Orig.Plaintiff)

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VERSUS

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1. Chabubai Sriram Sable,

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 Age : 54 years, Occu.: Agriculture

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2. Balasaheb S/o. Sheshrao Rode,
 Age : 33 years, Occu.: Agriculture

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3. Shivaji S/o. Pandit Kirwale,
 Age : 19 years, U/g.of Pandit Shamrao
 Kirwale, Age : 49 years,
 Occu.: Agriculture

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4. Prabhakar S/o. Narayan Rode,
 Age : 45 years, Occu.: Agriculture,
 All R/o.: Kaudgaon Sable,

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 Tq. Parli Vaijnath, Dist. Beed RESPONDENTS

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(Orig.Defendants)

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.....

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Mr. P.R. Katneshwarkar, Advocate for the Appellant.
Mr. N.T. Bhagat, Advocate for the Respondent nos.3 and 4.
None present for respondent nos. 1 and 2 though served

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.....

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CORAM : M.T. JOSHI, J.
DATED : 17TH AUGUST, 2011

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ORAL ORDER:

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1.Heard.

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(2) SA 437.2008

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2.The present appellant had filed the suit in

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the trial Court for perpetual injunction, claiming to
be title holder of the suit property on the basis of

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the sale deed claimed to have been executed by the
respondent no.1 Chabubai. The learned trial Court as
well as the first appellate Court recorded a finding
that neither the original sale deed i.e. the primary
evidence was placed before the Court nor any of the
scribe or attesting witness having been brought in

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the witness box, and dis-believed the case of the
appellant. In fact, the secondary evidence i.e.
certified copy of the sale deed was merely filed on
record and the appellant wanted to believe his case
by both the Courts.

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3.Mr. P.R. Katneshwarkar learned counsel for

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the appellant submits that the special civil Suit
no. 98 of 1996 was filed by respondent nos. 3 and 4
i.e. the original defendant nos. 3 and 4 against the

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appellant and his predecessor in title i.e.
respondent no.1 Chabubai claiming certain reliefs
regarding the suit property on the basis of certain

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(3) SA 437.2008

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agreement between Chabubai and those defendants.
According to him, the suit was dismissed, wherein it
was held that the present appellant-plaintiff was the
title holder of the suit property on the basis of the
sale deed.

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4.No plea of res-judicata was raised before

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any of the Courts. The trial Court as well as the
first appellate Court, therefore did not touch the
said aspect. The plea of res-judicata is a mixed
question of law and facts.

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5.It has been vehemently argued that both the
Courts below did not consider the certified copy of
the judgment delivered in Special Civil Suit no. 98
of 1996. It has been argued that the certified copy

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of the judgment was a piece of evidence and,
therefore, it should have been considered by the
learned Courts below and it was the patent error on
the part of the learned trial Court.

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6. However, as already observed, as there are

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no pleadings, which could be met by the other side, I
neither find that there is any substantial question

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(4) SA 437.2008 of law, has arisen nor there is any patent error committed by the trial Court. The Second Appeal is therefore dismissed.

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 Sd/-
 [M. T. JOSHI, J.]

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arp/

Vasant Eknathrao Acharaya v. Chabubai Sriram Sable and Ors.

Case brief

What is this about?

What did the court decide?

Vasant Eknathrao Acharaya v. Chabubai Sriram Sable and Ors.

Case brief

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What did the court decide?

What the court decided

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