The High Court held that the Plaintiff's suit was not barred by res judicata as parties and properties in the prior suit differed. It also found the properties to be ancestral, not self-acquired, dismissing the Second Appeal.
Second Appeal No.546 of 2023 and Interim Application No. 17222 of 2023 dismissed.
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kishor 1/3 21 (22.01.24).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.546 OF 2023 WITH
INTERIM APPLICATION NO. 17222 OF 2023
Nandakumar Tukaram Jadhav And Anr. ...Appellants Versus Sou. Malan Dattatraya Jadhav ...Respondent ….
Mr. Abhaykumar Apte, for Appellant.
CORAM : SANDEEP V. MARNE, J. DATED : 22 JANUARY 2024.
P.C. :
Challenge in the present Appeal is to the Judgment and Order dated 11 January 2023 passed by the District Judge, Baramati dismissing Regular Civil Appeal No.162 of 2016 filed by the Appellants and confirming the decree dated 17 October 2016 passed by the 4th Jt. Civil Judge, Junior Division, Baramati.
kishor 2/3 21 (22.01.24).doc
power of attorney holder. I have gone through the plaint in RCS No.300 of 1997. The said suit is filed by Dhondabai Parvati Sapkal. Though PlaintiffMalan Jadhav may have acted as constituted attorney of Dhondabai, in the event of suit being decreed Dhondabai would have secured declarations as sought for in the plaint. Plaintiff-Malan would not have secured any decree in her capacity as power of attorney holder of Dhondabai. Thus parties in RCS No.300 of 1997 and RCS No.115 of 2013 are not same. Furthermore the properties in both the suits are also not same. RCS No.300 of 1997 was filed only in respect of Gat No.337 whereas RCS No.115 of 2013 is filed in respect of Gat Nos.337, 338 and 173. Thus, the suit properties are also not identical. Also the nature of relief sought in the two suits are also different. Dhondabai sought declaration in RCS No.300 of 1997 that she is sole owner in respect of land bearing Gat No.337. On the contrary, Plaintiff-Malan asserted that the three suit properties including land bearing Gat No.338 is the joint family property. RCS No.300 of 1997 was for declaration of exclusive ownership of Dhondabai whereas RCS No.115 of 2013 is for partition. In my view, therefore the Trial Court and First Appellate Court has rightly held that the Suit of the Plaintiff is not barred by the principle res judicata.
kishor 3/3 21 (22.01.24).doc
SANDEEP V. MARNE, J.
Digitally signed KISHOR by KISHORVISHNU VISHNU KAMBLE KAMBLE Date:2024.01.24 17:31:02 +0530
2 issues framed by the court
Whether the Plaintiff's suit is barred by the principle of res judicata.
Whether the suit properties are self-acquired properties of the Appellants.
Colour shows how this judgement treated each authority
Not cited in the main textReferred
1 provisions across 1 enactments
Nandakumar Tukaram Jadhav And Anr.
Sou. Malan Dattatraya Jadhav
Sandeep V. Marne
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
