M.M. Kumar, J. - (1.) This revision petition is directed against order dated 12.9.1981 passed by the learned Sub Judge 1st Class, Gurgaon dismissing the suit of the plaintiff -petitioners (for brevity, 'the plaintiffs') on the preliminary issue that the suit was barred by the principle of resjudicata.
(2.) The brief facts necessary for deciding the legal controversy raised in this revision petition may first be noticed. The plaintiffs have filed a suit for permanent injunction praying for restraining the defendant -respondents (for brevity, 'the defendants') from stopping the flow of rainy water of the house of the plaintiffs. The averments made in the plaint are that the plaintiffs purchased a plot mentioned in paragraph 1 of the plaint through their fathers as benamidars -defendants 3 and 4 respectively. Later on they built up a house on the plot and claimed that they were the real owners, whereas defendants 3 and 4 were benamidars. The rainy water of the plot and also that of the house has been flowing through the brain (Mori) in wall 'AB' into the street shown in red colour with letters 'ABCDE' and then it falls into the water channel constructed by the gram panchayat for the last 50 years, The plaintiffs have claimed that they had acquired a right of easement for drainage of the rainy water of their house. The right of easement concerning drainage of the rainy water of their house has also been pleaded by asserting that their house is surrounded by other persons on all other sides. It has been alleged that defendants 1 and I intend to demolish the wall 'AB" with the object of diverting the flow of rainy water toward the house of the plaintiffs, although they have no right to do so.
(3.) Defendants 3 and 4 being the fathers of the plaintiffs did not file any written statement and admitted the claim. However, defendants 1 and 2 contested the suit on several grounds by pleading that the suit is barred by the principle of resjudicata as the issue has already been decided by judgment dated 5.9.1979 Ex. D3. The trial Court on the basis of pleadings framed a preliminary issue to ascertain whether the principle of resjudicata applies and sustained the objection. The operative part of the order sustaining the objection of res judicata finds mentioned in paragraph 5 of the order, which reads as under: - "Ex. D.1 is certified copy of the plaint of the previous suit filed by Siri Ram (defendant No.1 in the present suit) against Chandmal, Tara Chand defendants and some other persons in respect of the same wall and street, involved in the present suit. Ex. D.2 is certified copy of the site plain of the property involved in that suit. A combined reading of both these documents shows that the relief claimed in that suit was the same which is now being claimed by the plaintiffs in the present suit. In that suit, the wall in question was described as PJ and the street was described as ABJE, whereas in the present suit, the same wall has been shown with words AB and the street has been shown with words ABFG in the plaint and the site plan.";