A.S. Chandurkar, J.

1. The challenge in the present second appeal is to the judgment dated 17-9-2011 passed by the lower Appellate Court dismissing the appeal filed by the present appellant. The present appellant had filed Regular Civil Suit No. 267 of 1999 in which a decree for perpetual injunction was sought. Similarly, the present respondents had filed Regular Civil Suit No. 54 of 1999 in which also decree for permanent injunction was sought. Both the suits were in relation to the same property. Hence, both the suits were consolidated and common evidence was recorded by the trial Court. By judgment dated 30-3-2002 the trial Court dismissed Regular Civil Suit No. 267 of 1999 and decreed Regular Civil Suit No. 54 of 1999.

2. The present appellant being aggrieved by the dismissal of her suit (Regular Civil Suit No. 267 of 1999) preferred Regular Civil Appeal No. 134 of 2002. The decree passed in Regular Civil Suit No. 54 of 1999 against the appellant was not challenged. The lower Appellate Court by relying upon the decision of the Supreme Court in Premier Tyres Limited vs. Kerala State Road Transport Corporation, AIR 1993 SC 1202, dismissed the appeal on the ground that there was no challenge to that part of the common judgment decreeing the suit in favour of the respondent.

3. Shri R.G. Kavimandan, learned counsel appearing for the appellant submitted that the lower Appellate Court erred in not considering the appeal on merits. He submitted that the trial Court had exercised jurisdiction in a matter in which it had no jurisdiction under provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short the said Act). Relying upon the decision of the Supreme Court in Jaisingh Jairam Tyagi and others vs. Mamanchand Ratilal Agrawal and others, (1980) 3 SCC 162, he submitted that if a question of jurisdiction was decided erroneously, such decision would not operate as res judicata in the subsequent proceedings. He also relied upon the decision of the Supreme Court in Shevantabai Maruti Kalhatkar vs. Ramu Rakhamaji Kalhatkar and another, 1998 (3) Mh.L.J. (S.C.) 834 : (1998) 8 SCC 76 to urge that the Civil Court has no jurisdiction to decide matters in relation to those that fell within the purview of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. He, therefore, submitted that these vital aspects gave rise to substantial questions of law.

4. On the other hand, Shri A.R. Deshpande learned counsel appearing for the respondents, relied upon the judgment in the case of Premier Tyres Limited (supra) and submitted that the Appellate Court had rightly not entertained the appeal on merits. He submitted that even the facts in aforesaid decision were similar to the facts of the present case. He further submitted that even if the issue of jurisdiction is involved, in absence of there being any challenge to the decree passed in the suit that was jointly tried along with the other suit, said aspect would not make any difference as regards tenability of the only appeal preferred. He, therefore, submitted that no substantial question of law arose.

5. The factual aspect of the matter as regards common judgment being passed by the trial Court while deciding both the suits that were consolidated and challenge by the original defendant to only one decree is not disputed. It is clear that the original defendant did not challenge the decree passed against her in Regular Civil Suit No. 54 of 1999. In Premier Tyres (supra) while considering a similar situation, the Apex Court in para 4 observed as under:

"It appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law.