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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPELLATE JURISDICTION

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.204 OF 2007

WITH

CIVIL APPLICATION NO.1638 OF 2006

Ramu Gadade & Ors. ..Appellants.

V/s.

Bapu Limbaji Gadade & Ors. ..Respondents.

Mr.P.K.Hushing for appellants.

Mr.Rahul S.Kate for respondent Nos. 1 to 6.

CORAM: A.M.KHANWILKAR,J

CORAM: A.M.KHANWILKAR,J

CORAM: A.M.KHANWILKAR,J

DATE : JULY 16, 2007.

DATE : JULY 16, 2007.

DATE : JULY 16, 2007.

P.C. :

P.C. :

P.C. :

1. Heard counsel for the parties. Admit on the

substantial question of law to which I shall

presently refer.

2. Having regard to the limited controversy in

this appeal, counsel appearing for both the parties

agreed for final disposal of the appeal.

3. The appellant in this appeal has raised two

issues. The first is regarding the suit filed by the

respondents being barred by principle of res judicata

in view of the previous suit being RCS 153/1978 and

RCS No.60/1979. In so far as this issue is

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concerned, I am in agreement with the view expressed

by the two Courts below that the suit filed by the

respondents was not barred by the principle of res

judicata. For, the present suit is a substantive

suit for relief of partition and possession. The

former suits were merely for declaration and

injunction. It is open to the coparcener to limit

the relief of declaration that the transaction

entered into by the Karta with third party was not

for legal necessity of the family and therefore, not

binding on that coparcener. It is not necessary that

while challenging the validity of such transaction,

coparcener should simultaneously necessarily pray for

relief of partition of such property or partition of

the entire property. Counsel for the appellants

would argue that it was imperative for the coparcener

to simultaneously ask for relief of partition of the

suit property in addition to the relief of

declaration and consequential relief in respect of

the suit property. This submission does not commend

to me.

4. Suffice it to observe that the two Courts

below have considered all the relevant aspects of the

matter to answer the issue of res-judicata against

the appellants/defendants. Besides, whether the

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present suit is barred by principle of res judicata

would require investigation into questions of fact as

to whether the parties were common in all these

proceedings and that the point in issue was common

and have already been answered.