RAM GOPAL Vs. ATMA RAM

JUDGEMENT

(1.) THIS second appeal has been preferred by one of the defendants against the decree of the Courts below for injunction directing the defendants to remove the encroachment made on the site ABCD, marked red in the plan Exhibit PW6/1.

(2.) RESPONDENT -plaintiffs filed a suit giving rise to this appeal for declaration that the site marked ABCD was a thoroughfare which had been encroached upon by the defendants, who should be directed to remove the same. The suit was contested by the defendants and it was submitted that in view of the order dated 30.5.1975 passed by the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, the suit was not maintainable. It was submitted that the site in question was owned by the defendants and the same was not a common passage. The trial Court held that the site in dispute was a common passage and was not owned by the defendants. The defendants did not press the issues of res judicata and the bar of jurisdiction of the Civil Court and the findings on the said issues were recorded against them. The lower Appellate Court affirmed the findings of the trial Court that the order of the Sub Divisional Magistrate will not be a bar to the jurisdiction of the Civil Court.

(3.) HAVING heard learned Counsel for the parties and having perused the record of the case, in particular the order Exhibit D-6, dated 30.9.1975 passed by the Sub Divisional Magistrate, Naraingarh, I am of the view that though the learned counsel for the appellant is right in contending that under Explanation VIII to Section 11 of the Code of Civil Procedure, a decision of a Court of limited jurisdiction can operate as res judicata even if that Court was not competent to try the subsequent suit in which the issue had arisen, but the qualification required is that such all issue should have been