- (1.) The plaintiffs had filed a suit praying for a decree of mandatory injunction directing the defendants to restore a 3 karam wide rasta as reflected in yellow colour in the site plan attached with the plaint stating the same to have been in existence for more than 30 years. The defendants having contested the suit filed a written statement and also filed an application under Section 151 of the Code of Civil Procedure for deciding the issue regarding principle of res judicata as a preliminary issue. The defendants averred that the plaintiff had earlier filed a suit bearing no. 19 of 1999 titled as Mutton Singh and others v. Mewa Singh and others, which had been decided by the then Additional Civil Judge (Sr. Divn.), Karnal vide judgement dated 17.8.2006. It was also averred that the matter raised in the present suit had already been decided in the previous suit.Accordingly, a preliminary issue was framed by the Trial Court to the following effect:- Whether the suit of the plaintiff is barred by the principle of res judicata?
(2.) The Trial Court noticed that in the earlier judgement dated 17.8.2006 the court had held that the existence of the passage was not proved and as such the right of alleged easement therein was also not proved. It had been held that even a petition under Section 42 of the Consolidation Act filed by the plaintiff had been dismissed and the same had been held to be sufficient to prove that there was no passage. In the earlier suit the court in the judgement dated 17.8.2006 had returned categoric findings that no rasta existed at the land in dispute and that the plaintiff had failed to prove the existence of the same. The Trial Court in the present suit held that the plaintiff had prayed for a mandatory injunction claiming that the defendants had demolished such alleged rasta and they be directed to restore the same to the plaintiffs.
(3.) The Trial Court vide judgement and decree dated 18.11.2009 dismissed the suit holding the same to be barred by the principle of res judicata on the reasoning that the matter directly and substantially in issue in the earlier suit, which had been decided on merits to the same as involved in the present case. The findings returned by the Trial Court holding the suit to be barred by the principle of res judicata have been affirmed by the First Appellate Court vide impugned judgement dated 23.9.2011. Resultantly, the plaintiffs-appellants are in second appeal before this Court.;