GIRRAJ SHARAN Vs. LAXMI CHAND

JUDGEMENT

(1.) THIS second appeal under Sec. 100 C.P.C. has been filed against the judgment and decree dt. 24.8.1994 passed by Addl. District Judge No. 1, Bharatpur in Civil First Appeal No. 13/89 (Old No. 12/84) confirming the judgment and decree dt. 05.01.1984 passed by Munsiff, Bharatpur in Civil Suit No. 5/79. The brief facts leading to filing of this second appeal are that the plaintiff -appellant filed a civil suit against the defendant for declaration, permanent injunction and demolition of unauthorized construction raised by the respondent. The appellant purchased the land on 26.03.1971 and defendant has also purchased the land from the same owner Shri Surendra Singh. There was a 5 feet lane between the two plots. It has been alleged in the plaint that defendant had encroached upon his land on 17.10.1972. On the contention of the parties after hearing of the matter, the suit has been dismissed by the Court below on the ground that the plaintiff was not in possession of the property and there is no evidence that defendant has dispossessed him on 17.10.1972, Apart from it, the Court below was also of the opinion that earlier the appellant -plaintiff has filed a suit on the same ground which was dismissed hence this second suit is barred by res judicata and suit has been dismissed, the appeal has also been dismissed on the same ground, hence this second appeal.

(2.) THE appeal has been admitted on 13.7.1989 on the following substantial question of law:

(3.) THE facts are not in dispute that earlier the appellant has filed a suit for injunction and admittedly, the issue before the Court was whether he has been dispossessed from the property on 17.10.72 which is the pin -pointed issue in the present matter also and both the Courts below have rightly held that suit is barred by res judicata as per provisions of Section 11 Explanation IV C.P.C. relief of possession might and ought to have been made a ground of attack in the former suit and appellant has purposefully not opted for the same. A matter which might have been made a ground of attack in the former suit but it was not done by the party will also be deemed to have been a matter directly and substantially in issue in the second suit. There is no distinction between a claim made or might and ought to have been made.