BAI VIRKOR Vs. PRAJAPATI DAMODAR BOGHABHAI

JUDGEMENT

(1.) A short but an interesting question of procedural law falls for determination in this appeal. The said question is as to whether the plaintiff can be permitted with immunity to file more than one suit on the same cause of action against the same defendant and if he has filed such a suit what is the legal fate of such subsequent suit.

(2.) The question which is posed for determination in the present proceedings arises out of the following conspectus of facts.

(3.) The appellant plaintiff is the owner of immovable properties bearing survery 480/20/3/1 480 and 480/20/3/3 situated in the Town Planning Scheme No. XI (Bapunagar) in this city. On this land which comprises of three sub-divisions of survey No. 480/20/3 there are rows of rooms or Chawls of the plaintiff. According to the plaintiff she is also jointly with the defendant the coowner of the property bearing survery No. 480 which admeasures two Gunthas (1 Guntha as per the Record of Rights) and that land bearing survey No. 480/20/5 is the passage land. It is the case of the plaintiff that on the north of her property namely survey No. 480/20/3/1 480 and 480/20/3/3 there is situated a Chawl of the defendant comprising of survey Numbers 480/20/1 and 480/20/2 which are the other subdivisions of survey No. 480/20. The plaintiff s further case is that the entire survey No. 480/20 has been included in the Town Planning Scheme No. XI Bapunagar and she and the defendant have jointly been allotted the entire property as Final Plots Nos. 16 and 17 under the said scheme. The plaintiff contends that even after the reconstitution of the plots rights of the parties to the suit land bearing survey No. 480/20 have not been extinguished and her right to use the suit land survey No. 480/20/5 as a coowner for passage has not been extinguished. According to her the land of Final Plots No. 16 & 17 of the Town Planning Scheme No. XI which have jointly been allotted to the parties to the suit has never been partitioned between the parties to the suit and not only that but her right to use the land of survey No. 480/20/5 as a passage land has also remained unaffected. The plaintiff further contends that in the reconstitution of the plots 206 Sq.Mtrs. of additional land has been allotted to the parties and she has a joint right in respect of those additional 206 Sq. Mtrs. To the north of the land bearing survey Nos. 480/20/3/1 480 and 480/20/3/3 there is the land of the defendant and in that land the defendant respondent has his rows of rooms or Chawls. The plaintiff alleged that though there has never been a partition between her and the defendant the defendant unauthorisedly wanted to construct a wall between the land of the plaintiff and the land of the defendant as though there has already been a partition. The plaintiff therefore contended that the alleged act of the defendant would create a difficult situation for the plaintiff and that if the defendant succeeds in putting up a compound wall or a partition between her property and the property of the defendant her passage would be blocked and her right in the additional land would be lost. The plaintiff further stated that if the defendant had constructed a compound wall between her rooms and the rooms of the defendant then her right of passage for men as also for the vehicles on the co ownership land of survey No. 480/20/3 would be extinguished and her right to the additional land of 206 Sq. Mtrs. would also be defeated and her tenants would find difficulty in going to the main road and the vehicles would not be in a position to come to her property. On these allegations the plaintiff had prayed for a permanent injunction restraining the defendant from putting up or constructing eastwest wall or fencing in between her Chawls and the defendants chawls i. e. to the north of the plaintiffs Chawls and to the south of the Defendants Chawls and further restraining the defendant from disturbing or obstructing the plain tiff in her enjoyment of her coownership rights and from taking her vehicles to her land.