SANTOSH Vs. HARI SINGH

JUDGEMENT

(1.) The coloured site plan has been placed on record. Learned counsel for the appellant has urged that the impugned judgment dated 6.4.2010 has not correctly appreciated the fact that the subject matter in the suit No.304/1997 (decided vide judgment and decree dated 16.8.2002) has to be read in conformity with the plaint of that suit. It is submitted that the application of the doctrine of res judicata as such did not arise and the judgments of both the two Courts below have misapplied the doctrine which has raised a substantial question of law.

(2.) Present suit was a suit for permanent and mandatory injunction filed by the appellant against the respondent/defendant Hari Singh. The relief sought for is as follows:

(3.) A preliminary objection had been framed as to whether the suit is barred by the principle of res judicata as the judgment in earlier suit between the same parties i.e. in suit No.304/1997 decided on 16.8.2002 had already decided this issue. The said suit was also a suit for permanent injunction; it had been decreed in favour of Hari Singh i.e. the plaintiff therein and the appellant herein was restrained from interfering in the peaceful enjoyment of Hari Singh in respect of the aforenoted disputed gali and from raising any construction thereon. Appeal against the said judgment dated 16.8.2002 had been filed which had also been dismissed on 5.11.2003. These facts are not in dispute.