DAMODAR LAL Vs. SURAJ KANWAR

JUDGEMENT

(1.) SURAJ Kanwar plaintiff-respondent and her son instituted civil original suit No. 540/1964 on Nov. , 10, 1964 in the court of Munsif (East), Jaipur City against Damodarlal & Municipal Council, Jaipur. The houses of plaintiff SURAJ Kanwar and defendant No. 1 Damodarlal are situated in the southern line of Gopalji-Ka-Rasta facing towards north. In between them there is a 'gali' 5ft. 3 inches wide (East-west ). This 'gali' was alleged by the plaintiff SURAJ Kanwar to be public street and she claimed her right of access to and from the 'gali'. The Municipal Council, Jaipur was defendant No. 2 in the suit. It was alleged that the defendant No. 1 has prevented the plaintiff from repairing her house of going into the 'gali' and he had constructed a chabutra and gate for obstructing ingress and gress of the plaintiff to and from this 'gali'. The plaintiff, therefore, claimed for a declaration that she had the right to pass and re-pass through the 'gali' and to use it. She also prayed for a decree of mandatory injunction for the demolition of the chabutri and the gate. It was further prayed that two spouts in the third storey of the house of the defendant No. 1 may also be got closed and a permanent injunction may be issued against defendant No. l restraining him from making any constructions in the 'gali' in suit in future.

(2.) THE suit was contested by both the defendants. THE defendant No. l pleaded that there was no house facing north belonging to the plaintiff in Gopalji-Ka-Rasta and that Sardarmal was also co-owner of that house. It was denied that the 'gali' in question was a public street. THE defendant No. l stated that no windows or ventilators of the house of the plaintiff opened towards this 'gali'. When she opened some windows towards the 'gali', defendant No. 1 had instituted a civil suit against her and her son Sardarmal for permanent injunction. That suit was decreed by the trial court. THE plaintiff filed a first appeal and the same was got dismissed by her after undertaking that she would affix 'jalies' on the windows opened by her. It was further alleged that previously the plaintiff had tried to connect the gutter line of the latrine of her house. THE gutter line was connected with the line of the house of defendant No. 1. On that occasion also the defendant No. 1 had instituted a civil suit against the plaintiff and Sardarmal for permanent injunction and that suit was also decreed against the plaintiff by the trial court. THE plaintiff filed a first appeal and the same was got disposed of on payment of an amount of Rs. 225/ by the plaintiff to the defendant No. l as compensation for connecting the gutter line of the latrine of her house with the gugger line of the house of defendant No. 1. THE defendant No. l, therefore, pleaded that the judgments in these previous suits operated as res-judicata as against the plaintiff. THE defendant No. 1 denied that he had constructed any new Chabutri or gate or that he had opened any new spouts. THE rights of the plaintiff to use the 'gali' was disputed.

(3.) IT may be mentioned that the defendant-appellant has urged before this Court that in the previous litigations that took place between him and the plaintiff, the disputed lane was held to be the property of the appellant and the decision in those suits operated as res-judicata. IT is well-settled that in order to establish a plea of res-judicata, it is always necessary to produce the-certified copies of the pleadings of the parties in the previous suit and the issues framed therein so that it can be found out as to what were the points directly and substantially in issue between the parties in the previous suits. The defendant No. l did not produce the pleadings of the parties in the two previous suits before the trial court and even the certified copy of issues framed therein were not produced. In the absence of that, the plea relating to resjudicata could not even be adjudicated. Be that all as it may, it appears from a certified copy of the appellate order of the Senior Civil Judge, Jaipur City No. 2 dated April 1, 1963 that Suraj Kanwar, who was one of the defendants in the previous suit, had filed an appeal against the decree of a trial court in that suit. During the pendency of the appeal, the parties to the appeal filed an application that the matter had been compromised and the decree be passed in accordance with the terms of compromise. Consequently, the Senior Civil Judge passed an order that Suraj Kanwar and his son (who were appellants) shall put 1-1/2" jalies in all the windows in the wall of the western side of their house facing 'gali' situated between the houses of the parties within one month and in case of default in doing that, Damodar Lal shall be entitled to get them closed. That was in all the decree of the first appellate Court in the previous suit on the basis of compromise arrived at between the parties thereto. IT further appears that there had been one more litigation between Damodar Lal and Suraj Kanwar. That litigation concerned the connecting of the gutter line of the flush latrine of her house by plaintiff Suraj Kanwar with that of the gutter line of appellant Damodarlal's house. IT seems that Damodar Lal had filed a suit against Suraj Kanwar and that was decreed by the trial court. Suraj Kanwar filed First Appeal No. 22/1962 which was decided on 1st April, 1963 on the basis of compromise arrived at between the parties thereto. A compromise decree was passed that Suraj Kanwar shall be entitled to connect flush latrine in the gutter line laid by Damodarlal in the lane between the houses of the parties and that Suraj Kanwar shall pay Rs. 225/-to Damodar Lal within one week.