LALA RAGHUNANDAN PRASAD Vs. RAM BHAJAN

JUDGEMENT

(1.) This is Plaintiff's appeal and arises out of a suit for injunction restraining the Defendant from allowing his sweeper to use the chabutra for the purpose of cleaning his drop latrine which is towards the south-west of the house of the Defendant. The house of the Defendant is to the north of the chabutra which admittedly belongs to the Plaintiff. It was alleged by the Plaintiff that the Defendant had built a drop latrine in 1945 and was using his chabutra for the purpose of cleaning it which amounted to a nuisance and which was determental to his interest. The Defendant pleaded that the latrine in dispute was an old one and that he had acquired an easement over the chabutra. The learned Munsif did not frame any issue whether the Defendant had acquired the right of easement over the chabutra in dispute. The issue which was framed by him and which is issue No. 2 is as follows:

(2.) It appears from a perusal of this judgment, that he found that the Defendant had not acquired any easement over the chabutra in dispute. Accordingly he decreed the claim for injunction and prohibited the Defendant from allowing the use of the chabutra for the purpose of cleaning the latrine. He also ordered the Defendant to place wooden or iron purdah over the window of sandas so as to hide it from the view of the chabutra. The Defendant filed an appeal against this decision. It was contended in appeal that the question whether the Defendant had a right to use the chabutra for the purpose of getting his latrine cleaned had already been decided in an earlier suit No. 520 of 1936 between the same parties against the Plaintiff and the matter was therefore res judicata between the parties. This contention found favour with the lower appellate court and accordingly the appeal was allowed to this extent that the suit of the Plaintiff for injunction restraining the Defendant from the use of the disputed chabutra for the purpose of cleaning his latrine was dismissed. The order of the trial court directing the Defendant to cover the window of the latrine with a wooden or iron purdah was however confirmed.

(3.) It has been contended before me in appeal that the finding of the lower appellate court that the matter in dispute was concluded by the decision in suit No. 520 of 1936 and was res judicata was incorrect. In order to decide the question whether the decision in suit No. 520 of 1936 is res judicata in the present case it is necessary to examine the pleadings and the issues which were framed in that case and also the points which were decided there. It appears from an examination of the plaint of that suit that the Plaintiff had alleged there that the Defendant had opened a new window in his sandas on account of which there was great nuisance. He also alleged there that Defendant wanted to create a right of easement over the Plaintiff's land for the purpose of cleaning this latrine. The written statement which was filed in that case is not on the record. It however appears from a copy of the judgment of the learned Munsif who decided that case that the Defendant pleaded there that the Plaintiff was not owner of the dispute land, that the disputed constructions were old ones and that the suit was barred by limitation. It does not appear from this judgment that the Defendant pleaded there that he had acquired any easement by prescription or easement of necessity over the disputed land. The issues which were framed in that suit are as follows: