Kewal Singh and Another vs Ummed Singh and Others

M.K. Mudgal, J.

Heard on the question of admission.

The appellants/plaintiff have filed this appeal u/s 100 of the CPC being aggrieved by the judgment and decree dated 17.11.2009 passed by the Court of VI ADJ (FTC) Bhind in Civil Appeal No. 17 of 2009, confirming the judgment and decree dated 31.10.2008 passed by the court of Civil Judge Class II, Mehgaon in Civil Suit No. 41A of 2006 whereby, the suit filed by the plaintiffs for declaration and permanent injunction in respect of the suit land bearing Khasra No. 452/2 (New No. 1523) area 0.62 Hectares situated in village Sikroda Tehsil Mehgaon district Bhind (hereinafter would be referred to as "disputed land") and for getting the doors and windows of the house opened situated therein was dismissed. In this appeal, the appellants are referred to as "plaintiff" and the respondents to as "defendants". The facts in brief of the case are that the disputed land was purchased by the plaintiff vide sale deed dated 21.10.1978 and he got the house constructed in the year 1980 on it and the defendants are having no title in the disputed land. In spite of that, defendants No. 1 to 5 filed a Civil suit 338A of 1998 in the court of Civil Judge Class I Mehgaon and got the decree to the effect of closing the doors and windows of the house situated in the disputed land. But the said decree was pertaining to land bearing Khasra No. 452/3, hence, it was not binding upon the plaintiff. The plaintiff also got the disputed land measured by the revenue court in which, the doors and windows were found in Khasra No. 452/02. But taking pretext of judgment and decree of learned trial Court, the defendants No. 1 and 2 got the doors and windows closed. Hence, the plaintiff filed a suit against the defendants for the relief stated herein above.

The defendant No. 1 to 5 by filing written statement denied the plaint averments stating that the disputed land falls within the Khasra No. 452/2 of the ownership and possession of the plaintiff including the house situated therein, but the doors and windows of the said house opened towards the Khasra No. 452/3 of the ownership of the defendants, hence, they filed a Civil Suit No. 338 of 1998 which was decreed in their favour even after opposition of the plaintiff and the doors and windows of the said house were directed to be closed. The present suit has been illegally filed. Hence, the present suit filed by the plaintiff being based on the wrong facts is not maintainable and liable to be dismissed.

After framing of the three issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendant as stated above.

Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiffs filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above.

Heard learned counsel for the appellant and perused the record.

The learned counsel for the appellant submits that both the learned courts below have not properly considered the evidence produced by the plaintiff, owing to which the judgments passed by them deserves to the set aside.

On perusal of the record and the judgments of both the courts, it becomes clear that both the courts below having considered the evidence have dismissed the suit filed by the appellants. It is further noted here that when the doors and windows were illegally made towards the defendants'' ownership property, the defendants filed a suit being No. 338A of 1998 before the court of civil Judge Class I Mehgaon for mandatory injunction for closing them against the plaintiff who remained absent during the proceedings, owing to which the ex-parte judgment and decree was passed against the appellants/plaintiff for closing the doors and windows. The plaintiff neither filed appeal against the judgment and decree nor filed an application for setting aside the decree which had become final before filing this suit.

The plaintiff has filed this suit for getting the doors and windows opened which had been closed in compliance of the earlier judgment and decree passed in Civil suit No. 338A of 1998. Without setting aside the earlier judgment and decree, the relief sought by the plaintiffs cannot be granted in this suit. If the relief prayed by the plaintiff is granted, it would affect earlier judgment and decree impliedly nullifying them which had become final before filing the suit. Owing to which, such relief cannot be granted to the plaintiff. Besides it, the previous judgment and decree have the effect of res-judicata as the subject matter and parties are same in both the suit and the earlier judgment and decree had attained finality. Moreover, findings of both the courts recorded in dismissing the suit are quite appropriate.

Considering the aforesaid legality of the suit, it is concluded that the suit filed by the plaintiff is not maintainable and the plaintiff is not thus entitled to get any relief sought by him in the suit. Consequently, it appears that both the learned courts below have not committed any error in dismissing the suit.

In view of the concurrent findings of both the courts below and no substantial question of law being found for admission to this appeal, it being devoid of merit and substance deserves to be dismissed.

Thus, the appeal being merit less and devoid of substance, is hereby dismissed. No order as to the costs. Let the decree be drawn up accordingly.