Darab Singh Et. Vs Bal Krishan etc.

The present Regular Second Appeal has been preferred by some of the defendants, assailing the judgment and decree passed by the learned First Appellate Court, whereby the suit for permanent injunc(on, earlier dismissed by the trial Court vide judgment dated 15.12.2001, came to be decreed in favour of the plain(ff by the learned Addi(onal District Judge, Ambala, vide judgment dated 05.03.2005.

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For the sake of convenience, the par(es are referred to as per their status before the trial Court.

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The dispute pertains to a vacant parcel of land situated in Abadi Deh near Railway Sta(on, Barara, District Ambala, as depicted by le0ers ABCDE with red colour in the site plan (Ex.P1). The case of the

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plain(ff is that he has been in exclusive use and possession of the said property since the (me of his forefathers. According to him, the property serves as a passage for ingress and egress to his adjoining house and shops exis(ng on eastern side and is also used for placing goods connected with his business. It is alleged that the defendants, whose shops are located on the western and northern sides of the suit property, have no right, (tle or interest therein, yet they a0empted to interfere with his peaceful use and possession, thereby necessita(ng the filing of the present suit for permanent injunc(on in a representa(ve capacity under Order I Rule 8 CPC.

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The defendants contested the suit by raising preliminary objec(ons regarding maintainability, locus standi, and the bar of res judicata. It was contended that the very property in dispute had earlier been the subject ma0er of li(ga(on ini(ated by the uncles of the plain(ff, which was dismissed up to the level of this High Court, thereby conclusively determining the rights of the par(es. According to the defendants, the property had been acquired by them through an exchange with the District Board, Ambala, and formed part of Khasra No.590. They denied any right or possession of the plain(ff over the suit property and asserted their exclusive ownership and possession.

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Upon apprecia(on of evidence led by the par(es, the trial Court dismissed the suit, holding that the plain(ff failed to establish any right or interest in the suit property and that the suit was barred by the principle of res judicata. However, in appeal, the First Appellate Court reappraised the en(re evidence and reversed the findings.

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Assailing the aforesaid reversal, Learned counsel for the appellants–defendants contends that the First Appellate Court erred in reversing the well-reasoned judgment of the trial Court. It is argued that the suit property in the present case is iden(cal to the property involved in the

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earlier li(ga(on between the par(es, and therefore, the suit was rightly held by the trial Court to be barred by the principle of res judicata. On this basis, it is prayed that the impugned judgment be set aside and that of the trial Court be restored.

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Per contra, learned counsel for the respondent–plain(ff supports the impugned judgment and submits that the First Appellate Court has correctly appreciated the evidence by comparing the site plan (Ex.P1) with that of the earlier li(ga(on. It is contended that the property in dispute in the present suit is dis(nct from the one involved in the previous proceedings, and thus, the bar of res judicata is not a0racted. Accordingly, dismissal of the appeal has been prayed for.

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This Court has considered the rival submissions and carefully perused the record.

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The principal ques(on that arises for considera(on is whether the present suit is barred by the principle of res judicata, and whether the plain(ff has any enforceable right to seek injunc(on.

¶28

The First Appellate Court, being the final Court of facts, has recorded a categorical finding that the property involved in the present li(ga(on is dis(nct from the property, which formed the subject ma0er of the earlier li(ga(on. This finding is based upon a compara(ve analysis of the respec(ve site plans and is further for(fied by the admissions made by the defendants themselves. The defendants failed to dispute the correctness of the site plan (Ex.P1) and, in fact, admi0ed the physical features and loca(on of the adjoining proper(es. Such admissions cons(tute substan(ve evidence and lend credibility to the plain(ff’s case.

¶29

It is a se0led principle of law that for the applica(on of res judicata, the ma0er in issue in the subsequent suit must be directly and

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substan(ally the same as in the former suit between the same par(es or their privies. In the absence of iden(ty of subject ma0er, the bar of res judicata cannot be invoked.

¶33

In the present case, once it stands established that the suit property is different from that involved in the earlier li(ga(on, the very founda(on of the defendants’ plea collapses. The First Appellate Court has, therefore, rightly held that the suit is not barred by res judicata.

¶34

With regard to the plain(ff’s en(tlement, it is true that he has not been able to establish absolute ownership over the suit property. However, the evidence on record, including the admissions of the defendants, clearly demonstrates that the plain(ff has been using the suit property for ingress and egress to his house and shops. The law is well se0led that even a person in se0led possession, though not the owner, is en(tled to protect such possession against unlawful interference, except by due process of law.

¶35

The defendants have failed to establish either their ownership or exclusive possession over the suit property. Their plea that the property formed part of Khasra No.590, or that it was acquired through exchange remains unsubstan(ated. Furthermore, there is no evidence to suggest that the suit property forms part of a public street. In fact, such a plea was never specifically raised by the defendants.

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In these circumstances, the First Appellate Court rightly granted a limited decree of injunc(on, protec(ng the plain(ff’s right to use the property for ingress and egress, while restraining the defendants from causing unlawful interference. Such a decree strikes a balance between compe(ng claims and is in consonance with se0led legal principles governing possessory rights.

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The conten(on raised by the learned counsel for the appellants that injunc(on cannot be granted in the absence of proof of (tle is misconceived in the facts of the present case. The authori(es Shankar v. Ram Kala and others, Law Finder, DOC-ID #52789 ; and Rajender Kumar Saini v. Municipal Commi(ee, Hisar, 2001 (1) RCR (Civil) 305 relied upon by the appellants are dis(nguishable, as they pertain to cases involving trespassers or public property, which is not the situa(on herein. On the contrary, once possession and user are established, the plain(ff is en(tled to protec(on thereof.

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It is also trite that in a second appeal, interference is warranted only when a substan(al ques(on of law arises. The findings recorded by the First Appellate Court are pure findings of fact based on proper apprecia(on of evidence and do not suffer from any perversity or legal infirmity.

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Consequently, no ground is made out to interfere with the impugned judgment. Accordingly, the present appeal is dismissed, being devoid of merit, with no order as to costs. Pending applica(ons, if any, also stand disposed of.

¶42

As far as COCP No. 486 of 2005 , filed by the appellantpe((oner, for taking ac(on against the respondents for alleged viola(on of the status quo order dated 22.03.2005 passed by this Court is concerned, the said COCP has not been pressed during arguments before this Court and as such, the same is hereby disposed of as not pressed for.

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20.04.2026

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Yogesh

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(DEEPAK GUPTA) JUDGE

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