Decided on July 20,2005

Toranlal Appellant
Kunwarbai Respondents


D.R.DESHMUKH,J. - (1.) This second appeal is by the defendants against the judgment and decree dated 16th August, 1990 by Shri P.N.S. Chauhan, District Judge, Durg in Civil Appeal No. 10-A/89 whereby the First Appellate Court has reversed the judgment and decree dated 23-1- 89 of the 5th Civil Judge Class-II, Durg in Civil Suit No. 47-A/1986.
(2.) The controversy lies within a narrow compass. Defendant No. 1/ appellant Toranlal is the Ex-Malguzar of Village Janjgiri, Tehsil and District Durg. There was some dispute between the defendant No. I/appellant and the plaintiff/respondent Smt. Kunwar Bai relating to some agricultural land in which the plaintiff/respondent was preventing the flow of water causing damages to the crops of the defendant No. I/appellant. This Civil Suit No. 19-B/77 was dismissed against the defendant No. I/appellant. Aggrieved by the dismissal of his Civil Suit No. 19-B/77, Tomarlal had demolished the wall of the house of the plaintiff and had dug a deep pit on her land. The plaintiff/respondent brought a Civil Suit No. 47-A/1986 against Toranlal and 4 others for grant of permanent injunction to restrain the defendant/appellant from interfering with her possession. The defendant/appellant denying the allegations of the plaintiff resistance the suit inter alia on the ground that the judgment and decree in Civil Suit No. 19-B/77 had effect of res judicata upon the subsequent suit which was not maintainable.
(3.) The learned Lower Court framed issues on the question of res judicata and maintainability of the suit and also regarding entitlement of the plaintiff to permanent injunction. The plaintiff and defendants led evidence before the Lower Court, i.e., relating to the cause of action upon which permanent injunction against the defendant/appellant was sought. However the learned Lower Court dismissed the suit upon the issue of res judicata alone holding that the judgment and decree in the earlier suit had the effect of res judicata on the subsequent suit. The Lower Court did not give any finding on other issues.;

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