N. C. SHARMA, J. - (1.) SURAJ Kanwar plaintiff-respondent and her son instituted civil original suit No. 540/1964 on Nov. , 10, 1964 in the court of Munsif (East), Jaipur City against Damodarlal & Municipal Council, Jaipur. The houses of plaintiff SURAJ Kanwar and defendant No. 1 Damodarlal are situated in the southern line of Gopalji-Ka-Rasta facing towards north. In between them there is a 'gali' 5ft. 3 inches wide (East-west ). This 'gali' was alleged by the plaintiff SURAJ Kanwar to be public street and she claimed her right of access to and from the 'gali'. The Municipal Council, Jaipur was defendant No. 2 in the suit. It was alleged that the defendant No. 1 has prevented the plaintiff from repairing her house of going into the 'gali' and he had constructed a chabutra and gate for obstructing ingress and gress of the plaintiff to and from this 'gali'. The plaintiff, therefore, claimed for a declaration that she had the right to pass and re-pass through the 'gali' and to use it. She also prayed for a decree of mandatory injunction for the demolition of the chabutri and the gate. It was further prayed that two spouts in the third storey of the house of the defendant No. 1 may also be got closed and a permanent injunction may be issued against defendant No. l restraining him from making any constructions in the 'gali' in suit in future.
(2.) THE suit was contested by both the defendants. THE defendant No. l pleaded that there was no house facing north belonging to the plaintiff in Gopalji-Ka-Rasta and that Sardarmal was also co-owner of that house. It was denied that the 'gali' in question was a public street. THE defendant No. l stated that no windows or ventilators of the house of the plaintiff opened towards this 'gali'. When she opened some windows towards the 'gali', defendant No. 1 had instituted a civil suit against her and her son Sardarmal for permanent injunction. That suit was decreed by the trial court. THE plaintiff filed a first appeal and the same was got dismissed by her after undertaking that she would affix 'jalies' on the windows opened by her. It was further alleged that previously the plaintiff had tried to connect the gutter line of the latrine of her house. THE gutter line was connected with the line of the house of defendant No. 1. On that occasion also the defendant No. 1 had instituted a civil suit against the plaintiff and Sardarmal for permanent injunction and that suit was also decreed against the plaintiff by the trial court. THE plaintiff filed a first appeal and the same was got disposed of on payment of an amount of Rs. 225/ by the plaintiff to the defendant No. l as compensation for connecting the gutter line of the latrine of her house with the gugger line of the house of defendant No. 1. THE defendant No. l, therefore, pleaded that the judgments in these previous suits operated as res-judicata as against the plaintiff. THE defendant No. 1 denied that he had constructed any new Chabutri or gate or that he had opened any new spouts. THE rights of the plaintiff to use the 'gali' was disputed. So far as the Municipal Council, Jaipur was concerned, it admitted that the 'gali' in suit was public street. The Municipal Council referred to a previous suit which had been instituted by Damodar Lal defendant No. 1 against Municipal Council, Jaipur for permanent injunction for restraining the latter from removing the wooden stall and that suit was dismissed by the trial court and the first appeal filed by defendant No. 1 was also dismissed. On the pleading of the parties the trial court framed 9 issues. Under issue No. l, the trial court held that the disputed 'gali' was a public lane and every person could use and enjoy it and thus he decided this issue in favour of the plaintiff. Under issue No. 2 it was held that since the 'gali' was a public lane, the plaintiff had a right to use this 'gali' as a member of the public. It was found that the defendant No. 1 had erected two gates, one towards north and another towards south of the lane. On the question of resjudicata, the trial court held that the decision in the suit between defendant No. 1 and the Municipal Counsel, Jaipur did not operate as resjudicata because the plaintiff was not a party to that suit. However, the judgment in that suit was relevant and admissible under Sec. 13 of the Evidence Act. The suit was held to be within limitation and court fees was also held to be sufficient. The trial court further held that a private person could bring a suit for removal of obstructions in public 'gali' in case special damage was caused to him. Consequently, a decree was passed in favour of the plaintiff and against Damodar Lal defendant No. 1 restraining the latter from obstructing the plaintiff in the use of the public lane. Defendant No. 1 was further directed to remove the iron 'phatak' from its place. Aggrieved by this decree, the defendant No. 1 filed Civil 1st Appeal 57/71 which was decided by the Civil Judge, Jaipur City on July 26, 1972. The learned Civil Judge dismissed the appeal filed by the defendant No. 1. The Civil Judge observed that the fact that the disputed land was a public street is proved by one single evidence which was so useful against the defendant No. 1 that he had not been able to counter the adverse effect of that evidence. There had been a litigation in the year 1960 in between defendant No. 1 and Municipal Council Jaipur and in that litigation it was decided that the disputed lane was a public street. That decision was held to be relevant under sec. 13 of the Indian Evidence Act and was sufficient to shift the burden on the defendant No. 1 to prove that the 'gali' was not a public street which the defendant No. 1 had failed to discharge. It was further held that the right of the plaintiff to maintain the windows of her house and the gutter line had been recognised in the previous litigations and thus she had proved her right to use the public street not only as a member of the public but also as owner of the adjacent property. On the basis of these findings, the first appeal filed by the defendant No, 1 was dismissed. Hence, he has come in the second appeal before this court. The learned counsel for the appellant urged that the decision in the previous suits instituted by the appellant against Municipal Council, Jaipur did not operate as res-judicata. He contended that in the two earlier suits between the appellant and plaintiff-respondent No. l, it had been found that the disputed 'gali' was personal property of the appellant and both those decisions operated as res-judicata as against the plaintiff-respondent No. l. It was also argued that the 'gali' in suit was a closed 'gali' and was not a thoroughfare. It was in the exclusive use of the appellant. On these grounds, the learned counsel for the appellant urged that the decree of the courts below deserves to be set-aside. The counsel for the plaintiff respondent No. 1 supported the decree of the courts below.
(3.) IT may be mentioned that the defendant-appellant has urged before this Court that in the previous litigations that took place between him and the plaintiff, the disputed lane was held to be the property of the appellant and the decision in those suits operated as res-judicata. IT is well-settled that in order to establish a plea of res-judicata, it is always necessary to produce the-certified copies of the pleadings of the parties in the previous suit and the issues framed therein so that it can be found out as to what were the points directly and substantially in issue between the parties in the previous suits. The defendant No. l did not produce the pleadings of the parties in the two previous suits before the trial court and even the certified copy of issues framed therein were not produced. In the absence of that, the plea relating to resjudicata could not even be adjudicated. Be that all as it may, it appears from a certified copy of the appellate order of the Senior Civil Judge, Jaipur City No. 2 dated April 1, 1963 that Suraj Kanwar, who was one of the defendants in the previous suit, had filed an appeal against the decree of a trial court in that suit. During the pendency of the appeal, the parties to the appeal filed an application that the matter had been compromised and the decree be passed in accordance with the terms of compromise. Consequently, the Senior Civil Judge passed an order that Suraj Kanwar and his son (who were appellants) shall put 1-1/2" jalies in all the windows in the wall of the western side of their house facing 'gali' situated between the houses of the parties within one month and in case of default in doing that, Damodar Lal shall be entitled to get them closed. That was in all the decree of the first appellate Court in the previous suit on the basis of compromise arrived at between the parties thereto. IT further appears that there had been one more litigation between Damodar Lal and Suraj Kanwar. That litigation concerned the connecting of the gutter line of the flush latrine of her house by plaintiff Suraj Kanwar with that of the gutter line of appellant Damodarlal's house. IT seems that Damodar Lal had filed a suit against Suraj Kanwar and that was decreed by the trial court. Suraj Kanwar filed First Appeal No. 22/1962 which was decided on 1st April, 1963 on the basis of compromise arrived at between the parties thereto. A compromise decree was passed that Suraj Kanwar shall be entitled to connect flush latrine in the gutter line laid by Damodarlal in the lane between the houses of the parties and that Suraj Kanwar shall pay Rs. 225/-to Damodar Lal within one week. It is well-settled that Section 11 of the Code of Civil Procedure is not strictly applicable to compromise decree as it applies in terms only to what has been heard and finally decided by a Court. The consent decree does not operate as resjudicata. It is merely a contract between the parties to the settlement to which is added the seal of the Court. Judgment by consent raises an estoppel between the parties such as a judgment whereby the court exercise its mind on conduct of case. But an estoppel by a consent decree can arise only when the question raised in the subsequent suit was present in the mind of the parties and was actually dealt with by the consent decree. As has already been stated, the pleadings in the previous suits had not been filed by the appellant and thus he had utterly failed of show that the question regarding the nature and character of the 'gali' in suit was present in the minds of the parties or was even subject-matter of litigation between them. On the contrary, the compromises arrived at between the parties and the appellant compromite decrees obtained in two suits go to show that the appellant was only concerned with the placing of the 'jalies' on windows which were opened by Suraj-Kanwar in the wall of her house. That may, in all possibility, be due to the fact that the appellant complained infringement of privacy of his house. In the consent decree of another suit, the appellant had in mind that Suraj kanwar had used the gutter line of the house of defendant No. 1 to flush out the wastage of her own flush latrine in it. That dispute was settled by payment of Rs. 225/- by Suraj Kanwar to the appellant. By no stretch these decisions operate as res-judicata between the parties on the question whether the 'gali' in suit was a public lane or only a private lane of the appellant. On behalf of the plaintiff-respondents reliance has been placed upon another litigation which had taken place by civil suit No. 549/1960 between Damodar Lal appellant and Municipal Council, Jaipur. The pleadings of that suit were also not produced. However, certified copies of the judgments of the trial court as well as that of the first appellate court had been produced which are Ex. 1 and Ex. 2. It appears that Damodar Lal had instituted Civil suit No. 549/60 against Municipal Council Jaipur alleging that in front of his house No. 1127, situated in Gopalji-Ka-Rasta, Jaipur there was a Chabutra which existed for more than 80 years with tin shed over it. Out-side his house, on the eastern corner there was an almirah over the chabutra belonging to Damodar Lal. It was also pleaded that the 'gali' on the eastern side of Damodarlal's house also belonged to him. This Chabutra was shown by marks A B C D. It was stated by him that his tenant Radhey Shyam had kept on almirah on the line from 'e' to 'f' of the Chabutra and with his permission, his tenant had also fixed a wooden partition on the Chabutra. The Municipal Council, Jaipur had issued a notice on October 14,1960 to the effect that Damodar Lal had affixed a wooden frame covered by tin sheets facing west and had encroached upon two feet wide Government 'gali'. Damodar Lal was asked to remove the same which was an unauthorised construction. This led Damodar Lal to file a suit for permanent injunction against the Municipal Council for restraining the latter from removing the tin shed and the petition fra-me from the Chabutra portion marked A B C D. The Municipal Council in its written statement filed by it pleaded that the 'gali' which was on the northern side of Damodar Lal's house did not belong to him and that it belonged to the Municipal Council. It was also pleaded that the entire land upon which the Chabutra in front of the house of Damodarlal stoop was not of Damodarlal but was of Municipal Council. Damodarlal had only been given licence to construct the Chabutra and he had no right to make any constructions on the Chabutra. It was also pleaded that the gali which was on eastern side of the house of Damodarlal did not belong to him but belonged to the Municipal Council. In that suit nine issues were framed by the trial court. It would appear from the pleadings of the appellant and Municipal Council, Jaipur in that suit as recited in Exhibit-I that the matter directly and substantially in issue between the appellant and Municipal Council, Jaipur was with respect to the wooden frame and tin sheds, which Damodarlal had placed over the Chabutra marked as ABCD in front of his house and with respect to the encroachments by tin-sheds made by him on public street. It is to be noted that the disputed 'gali' is on the eastern side of the house of Damodarlal. Damodar Lal had stated in the plaint that the 'gali' on the eastern side of his house also belonged to him and was in his possession. The Municipal Council had denied that the 'gali* on the eastern side of the Damodarlal's house belonged to him and had stated that it vested in the Municipal Council. In this respect issue No. 5 was framed in the suit. The trial Court in that suit had made a notice in its judgment that on March 12,1963 Damodarlal had made an application that he did not want any determination of dispute with respect to the 'gali' which lay on the eastern side of his house. He requested that he does not want any decision with respect to the gali on the south of the place marked as X P. In view of that, the trial court held that the place marked as X S P R was a public street. It was found that Damodarlal had extended the Chabutra to the extent marked by A B P R without permission of the Municipality which was liable to be removed. The trial court thus dismissed the suit filed by Damodarlal. Damodarlal filed First Appeal No. 132/1963 which was decided by the District Judge, Jaipur city on July 18, 1964. Dealing with issue No. 5, the first Appellate court stated that it was frankly conceded that as it was a blind lane, the plaintiff had only the opportunity to use it but that would not mean that the blind lane becomes the property of an individual as the public has every right to go there at any time as it liked and there was no such proof given by the plaintiff to show that it belonged to him. While deciding issue No. 5, the trial court in Civil Suit No. 549/60 stated that Damodar Lal has produced no evidence that the 'gali' on the north of place as marked as X P belonged to him. It is mentioned that Damodarlal had affixed a door at point 'x' and had surrounded the place upto point marked as S. P. It is clear from the judgment that the trial court had held that there were no dispute with regard to the portion of the Chabutra in front of the house of Damodarlal which was marked as PRCD in the site plan and in that respect the Municipal Council had given no notice to Shri Damodarlal. The dispute was confined to only two portions marked as A B P R which formed part of the Chabutra and another part marked as XSPR which was a projecting portion on public street. ;