UMMEDIBAI Vs. BHIKAM SINGH
LAWS(MPH)-1980-4-6
HIGH COURT OF MADHYA PRADESH
Decided on April 22,1980

UMMEDIBAI Appellant
VERSUS
BHIKAM SINGH Respondents


Referred Judgements :-

GANESH SAKHARAM SARAF VS. NARAYAN SHRIRAM MULAYE [REFERRED TO]


JUDGEMENT

H.G.Mishra, J. - (1.)This is a Second Appeal by the plaintiffs against the judgment and decree of affirmance dated 20-9-79 whereby the judgment and decree passed by the trial Court on 26-4-77 dismissing their suit on the ground that it is barred by the doctrine of res judicata was afirmed.
(2.)Facts material for decision of this appeal are as under: Manila Ummedibai, plaintiff No. 1, is the wife of Daulatsingh and Roopsingh, plaintiff No. 2 and Udhamsingh (minor), plaintiff No. 3, who is represented by his Mother acting as next friend are sons of Daulatsingh and they are members of joint Hindu family. Bhikamsingh, defendant, had brought a civil suit against Daulatsingh in the Court of Civil Judge Class II, Vidisha, for issuance of mandatory injunction directing removal of encroachment made by the defendant by constructing a platform (Chabutara) and for issuance of a permanent injunction restaining Daulatsingh from preventing flowing of water of daily use discharged from the house of the defendant Daulatsingh from the mori newly constructed by him. This suit was registered as C. B. No. 139/72 and was partly dismissed on 6-8-74; so far as removal of encroachment if concerned. It was decreed in respect of permanent injunction restraining Daulatsingh from discharging water from the mori newly constructed. This decree has undisputedly attained finality. Certified copies of the plaint, written statement, judgment and decree dated 6-8-74 passed in the aforesaid suit are on record. 2A. Thereafter, the present suit has been brought by Manila Ummedibai, wife of Daulatsingh, and her two sons Roopsingh and Udhamsingh (minor), who is represented by his mother acting as next friend, for cancellation of the aforesaid decree in respect of closure of the mori in question.
(3.)Bhikamsingh, defendant No. 1 resisted the claim of the plaintiff inter alia on the ground that the suit is barred by the doctrine of res judicata in view of the fact that the decree in the earlier suit is against Daulatsingh, who is Karta of the joint Hindu family, of which the plaintiffs are members. This objection found favour with the trial Court. Consequently, the suit is dismissed as barred by res judicata. Aggrieved by this judgment and decree, the plaintiffs had preferred an appeal which has been dismissed vide the impugned judgment and decree. Hence, this second appeal.


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