- (1.) It is unfortunate that the present appeal which was filed in 1982 could not be decided expeditiously. Following substantial questions of law were framed at the time of admission of appeal:- (i) Whether the Courts below have misread and misconstrued Ex.A-3, Ex. A-4. Ex. A-5, Ex. A-10 and Ex. A-8 in holding that the present suit is not barred by res judicata? (ii) Whether the finding of the Courts below holding that the existence of Gali is based on no evidence ? (iii) Whether the Courts below have erroneously held that the opening of the spouts and shutters have rendered the alleged Nohra unusable and also affect the privacy of the plaintiffs' Nohra?
(2.) Contextual fact depict that the plaintiff-respondents (for short 'plaintiff) instituted civil suit for permanent injunction and possession in the Court of Munsif. The plaintiff stated that in the year 1962 when the defendant-appellant (for short 'defendant') constructed his house on the eastern side i.e. towards the Nohra of plaintiff he took out 6 spouts. At the time of construction, Kaccha House belonging to Lala Nai was also demolished and the Gali was taken in possession by putting tin sheets over it. Two new shutters were also put by the defendant towards the Nohra of the plaintiff. Site plan showing unauthorised occupation was annexed by the plaintiff with the plaint.
(3.) In the written statement the defendant denied the correctness of the site plan. Even the existence of alleged Nohra of the plaintiff was also denied. It was averred that the house of defendant was very old and renovated in 1962. Mories (spouts) ABCG shown in the site plan were in existence for more than 20 years and Mories E & H were constructed in the year 1962 in the presence of plaintiffs father. The land in question belong to temple and the spouts had been falling on that land for the last 50 years. The properties 2, 3 & 4 were not belonging to Lala Nai and the existence of Gali was also denied. The defendant further pleaded that the matter in dispute was already decided on September 21, 1944 (Gabduram v. Triloki, Jagannath), therefore, the suit was barred by res judicata under Section 11, CPC. The plaintiff was estopped from challenging the construction as no objection was raised at the time of construction. On the basis of the pleadings of parties seven issues were framed. The suit of the plaintiff was decreed vide judgment dated May 5, 1976. The first appeal against the said judgment came to be dismissed vide judgment and decree dated September 2, 1982. Hence the instant second appeal.;