MUNSHI MOHAMMAD ABDUL AZIZ Vs. GULAM JULANI

JUDGEMENT

(1.) The appellant was plaintiff in the suit, O.S. No. 251 of 1926, for a declaration of his right of way from a doorway in his premises over the defendant's adjacent yard marked Y on the plan, and for the removal of an obstruction by the defendant to that right of way. The suit was decreed by the trial Court. On appeal objection was taken that his claim was barred by operation of Section 11, Expln. IV, Civil P.C. As a result of an issue framed by the District Judge on this point, the trial Court found, and this finding has been accepted by the District Judge, that plaintiff's claim to an easement could and should have been raised by him in the previous suit between the parties, and that his failure to then raise it, is a bar to his setting it up in the present suit. The suit ha! accordingly been dismissed. In that previous suit, O.S. No. 496 of 1923, the position of the parties was reversed. The present defendant was then the plaintiff and he sued for a declaration of his sole ownership of the yard Y and for an injunction to close the doorway giving access to it and to restrain the then defendant, the present plaintiff, from trespassing in yard Y. In that suit the trial Court found in favour of plaintiff's sole title to the yard, but hold that the defendant had established his claim to a right of way over it. The plaintiff's claim to the suit yard Y was decreed, but the rest of his suit was dismissed. The plaintiff appealed. The Subordinate Judge confirmed the trial Court's decree. But in the course of his judgment, although he accepted the finding that the doorway in question had been in existence for 30 years, he observed that the defendant's claim to an easement over the site Y had not been the subject of an issue and that it was unnecessary to decide it in that suit. The material allegation in the plaint is to be found in para. 6: The defendant in the abovesaid manner unlawfully has not only occupied but has also been trespassing into the plaintiff's plot Y through the gateway at T improperly opened by him. The defendant has no right to open a gate at place T or to pass into lane Z through the zenana plot marked Y which is in plaintiff's enjoyment as of right.

(2.) And the relief prayed is: That plaintiff's absolute right to Y be declared, that T be closed as before, and that defendant and his successors in title be restrained by a permanent injunction from trespassing into plaintiff's site Y.

(3.) The written statement alleges that the defendant and his men had for a long time uninterrupted passage through this gateway. This was not the accurate manner of pleading an easement of way, but I think it sufficiently indicates that defendant was setting up a claim to a right of way over the plaintiff's yard. It was sufficiently definite in contradicting the averment in the plaint to require an issue to be framed upon it. But it is not essential for the purpose of Section 11, Expln. IV that an issue should have been framed. What the rule says is: Any matter which might and ought to have been made ground of defenee or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.