Smt. Santosh vs Sh. Hari Singh

Indermeet Kaur, J.

CM No. 12549/2020 (for exemption)

Allowed subject to just exceptions.

RSA No. 139/2010

The coloured site plan has been placed on record. Learned Counsel for the appellant has urged that the impugned judgment dated 6.4.2010 has not correctly appreciated the fact that the subject matter in the Suit No. 304/1997 (decided vide judgment and decree dated 16.8.2002) has to be read in conformity with the plaint of that suit. It is submitted that the application of the doctrine of res judicata as such did not arise and the judgments of both the two Courts below have misapplied the doctrine which has raised a substantial question of law.

Present suit was a suit for permanent and mandatory injunction filed by the appellant against the respondent/defendant Hari Singh. The relief sought for is as follows:

The defendant be restrained from installing door at main entry at point ''A'' to ''C'' in disputed gali shown in Red in site plan of property No. 107, Lal Dora, Village, Masoodpur, Near Vasant Kunj, New Delhi and the defendants be restrained from closing main entry at point ''A'' to ''C'' of gali and from interfering in peaceful enjoyment and from dispossessing plaintiffs from dispute gali Mark A to B shown in site plan.

A preliminary objection had been framed as to whether the suit is barred by the principle of res judicata as the judgment in earlier suit between the same parties i.e. in suit No. 304/1997 decided on 16.8.2002 had already decided this issue. The said suit was also a suit for permanent injunction; it had been decreed in favour of Hari Singh i.e. the plaintiff therein and the appellant herein was restrained from interfering in the peaceful enjoyment of Hari Singh in respect of the aforenoted disputed gali and from raising any construction thereon. Appeal against the said judgment dated 16.8.2002 had been filed which had also been dismissed on 5.11.2003. These facts are not in dispute.

The relevant findings in suit No. 304/1997 were dealt with while disposing of issue No. 3. The relevant extract of which inter alia reads as follows:

The entire evidence shows that the disputed gali is shown in red colour in the site plan Ex.PW-1/1 was exclusively left by PW2 for the use of the plaintiff for the ingress and egress and defendants have not right to raise construction of any kind in the gali or to interfere in the use and occupation of the disputed gali by the plaintiff. The issue is decided accordingly in favour of the plaintiff.

This finding was given after appreciating the version of DW2 that there was a gate at point A to C of the disputed gali in the site plan Ex.PW-1/1 which they did not wish to close.

Present suit of the plaintiff was accordingly dismissed being barred by principle of res judicata. The first Appellate Court had endorsed this finding on 6.4.2010.

Certified copy of the site plan filed before this Court clearly shows that the portion marked red is the disputed gali on which the right of Hari Singh stood established. Suit of Hari Singh was decreed holding that the gali had been left open in favour of Hari Singh for his use, ingress and egress and the defendant has no right to raise any construction of any kind and to interfere in the use and occupation of the said gali. This judgment has since attained a finality, it was between the same parties now before this Court and on the same subject matter.

The principle of res judicata as engrafted in Section 11 of the CPC is a policy decision to bring a finality to a litigation and not to permit the parties to agitate and re-agitate the same issue over and over again.

The substantial questions of law as formulated in the memo of appeal all relate to the applicability of this doctrine. No question of law much less any substantial question of law has been raised in this appeal. Appeal is dismissed in limine. File be consigned to record room.