RAJ SINGH Vs. BHUP SINGH

JUDGEMENT

(1.) Raj Singh, the appellant had filed a suit for mandatory and permanent injunction against his cousin Bhup Singh. Plaintiff was the owner of house No. 84, Nangloi Jat, Delhi. This house had come to his share by way of a family settlement in the year 1952. Defendant was the owner of property No. 83 and 85 situated on either side of the lane facing the property of the plaintiff. In property No. 83 a two storeyed house was constructed which did not have staircase. Defendant was using a wooden staircase for access to the first floor of the said building. Later on defendant had put up a temporary wooden plank as an over bridge to pass through his house. In 1968 defendant had constructed the ground floor and the first floor of house No. 85. He also tried to construct pakka over bridge about 8 feet in width to connect house No. 83 with the newly constructed room on the first floor of house No. 85 which blocked the frontage of property No. 84 which had fallen to the share of the plaintiff. The plaintiff and the owner of the adjoining houses objected to this construction. Property No. 84 was at that time only a vacant plot but the house was to be constructed and a proposed over bridge sought to be constructed by the defendant would have marred the property of the plaintiff defeating his easement rights.

(2.) This suit was contested. Primary objection was that this suit is barred by the principle of res judicata as an earlier suit on the same cause of action had been instituted by the brother of the plaintiff namely Sultan Singh in respect of the same property in which the same relief had been sought. The judgment of the said suit dated 14.2.1977 Ex.D-1 was proved. On merits as well the suit was contested.

(3.) Trial judge had framed five issues. The first issue related to the application of the doctrine of res judicata to the present proceedings. Trial judge had held that Ex.D-1 i.e. the judgment dated 14.2.1977 was pronounced in a suit in respect of the same property which was a suit instituted by Sultan Singh on his behalf as also on behalf of the other co-sharers of the property which also included the present appellant i.e. Raj Singh. It was a bonafide litigation which Sultan Sigh had pursued. Appeal filed by Sultan Singh against the said judgment had been withdrawn by him. The order withdrawing the appeal dated 12.8.1980 was proved as Ex.D-2. The application Ex.P-3 seeking permission to withdraw the appeal was also proved on record. Trial judge had held that in view of this withdrawal of the appeal by Sultan Singh, the judgment Ex.D-1 had become final between the parties. Explanation VI of Section 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was attracted; the present plaintiff was interested in the bonafide litigation pursued by his brother Sultan Singh; the said judgment operated as res judicata. The trial court had further held that the suit is also barred by limitation under Article 113 of the Limitation Act. The over bridge had been constructed in the year 1968; suit having been filed on 10.10.1979 was beyond the period of limitation. On both these grounds the suit was dismissed.