S VENKATESHA BHATTA Vs. S SUBRAMANYA BHATTA

JUDGEMENT

(1.) The plaintiff is the appellant; and he filed an earlier suit, O.S. No. 202 of 1959, claiming a right of way along the passage marked 'S'. in the commissioner's plan, Ex. C1. One of the issues in that suit was "whether there was a mamool pathway leading to R.S. No. 616/10 running between R.S. Nos. 616/5 and 6, 4 and 7 as alleged by the defendants". (The passage is marked in Ex. C1 as 'F2'). That issue was raised at the instance of the respondents, the defendants and on that issue, a finding was recorded that the mamool passage marked 'F2' was the pathway used by the appellant to come from his property, R.S. No. 616/10 on the south, to his property, R S. No. 616/6 on the north. The short question for consideration in the second appeal is whether the said decision is res judicata.

(2.) On the basis of the aforesaid finding on the said issue and also on the finding that there was no mamool pathway along the passage marked 'S', the previous suit was dismissed; and the appellant did not even attempt an appeal against that decision. On the other hand, be filed the present suit for injunction that the passage along 'F2' should be opened and that the appellant's use of the passage should not be interfered with. In this suit, one of the issues raised was whether the finding on the issue in the earlier suit mentioned hereinbefore was res judicata: and this question the Munsiff answered in the affirmative, while the Subordinate Judge answered in the negative. Since a learned Judge of this Court felt that this was an important question, the case has been referred to a Division Bench.

(3.) After hearing both the counsel and seeing a few decisions on the point, we have come to the conclusion that the decision of the Subordinate Judge is erroneous and that the case is practically on all fours with a decision of the Supreme Court which we shall refer to by and by. We shall first refer to the pleadings in the earlier case, the evidence therein, etc., which have a bearing on the question.