SITO W/O TULSI Vs. JAGURP SINGH

JUDGEMENT

(1.) The appeal is heard on the following substantial questions of law:-

(2.) The suit has been filed for declaration that a 9 feet broad passage proceeding from east to west from the main road on the east is a common passage and for an injunction restraining the defendant from interfering with the plaintiff's right of user. The plaintiff has appended a plan with the plaint that shows that a common passage leads to both, the plaintiff's as well as the defendant's house on the west. The defendant has denied that the passage was common to them and claimed that in earlier suit filed against the plaintiff's vendor, there has been a decree for injunction by a Civil Court and the said decree will constitute res judicata. The trial Court while examining the case found that the plaintiff cannot be prevented from using the common passage and the defendant had also not filed any document to show exclusive ownership of the passage. This judgment was set aside by the Appellate Court on a finding that there had been already ex parte decree against the plaintiff's vendor issuing a decree for injunction in favour of the defendant and that it will operate res judicata against the plaintiff from making a claim and seeking for a right of passage.

(3.) Res judicata under Section 11 CPC must be strictly construed. The said provision will apply only in cases where a previous judgment between the same parties was with reference to the same subject matter and it is a decision rendered on merits. An ex parte decree operates on a different footing and the principle applied is estoppel that a person against whom a decree is passed cannot take up a plea that he is not bound and he cannot be heard to say that the plaintiff has obtained a decree only ex parte and therefore, it cannot be enforced against him. The matter will, therefore, hinge on what is nature of relief which is granted in the earlier judgment. I have examined the judgment which the defendant has obtained against the plaintiff's vendor. The suit was not for a declaration with reference to passage but it was for an injunction restraining the defendant from interfering with the right of the plaintiff in the suit (defendant herein) and for further restraint against the plaintiff's predecessor from opening any door way or windows that would open into the common passage and obstruct the passage. The plaintiff's vendor remained ex parte and a decree for injunction had been granted. The injunction was not to restrain the plaintiff's vendor from using the passage. On the other hand, the injunction was a restraint against the plaintiff's vendor from disturbing the right of enjoyment of the present defendant. The present suit is similarly a right against the defendant from in any manner preventing the plaintiff's right of user of the property. I do not find from the reading of the earlier decree that there is any restraint against the plaintiff's predecessor from using the passage. The further restraint ordered was only to open any windows or passage that may obstruct the defendant's right of user of the passage. A right of user of the passage is not to be confused with an assertion of proprietary right over the passage. There is no document adduced by either of the parties to show the proprietorship over the property. The rough sketch filed along with the plaint shows that the 9 feet passage is the access to the respective houses from the main road. The counsel for the respondent points out to an admission by the plaintiff that she has another way of reaching her house. This will not to disentitle her to use passage unless the defendant is able to show that the defendant has exclusive title for the same. As I have observed neither of the parties has filed any document to show ownership of the property. The claim was made by the plaintiff only for user of the property as common and that the respondent shall be prevented from interfering with such user. I will hold that the plaintiff is entitled to such use and the ex parte decree does not operate in any way to prevent the plaintiff from exercising such a user.