Suit for Declaration of title and injunction for Exclusive Rastha - Earlier suit for injunction - in which it was found that it is a Common Passage - Whether operates as Resjudicata -Their Lordships held that in the absence of pleadings that the common passage was converted into absolute rastha and his mother gifted the same - the finding in earlier suit operates as Resjudicata - Whether the Status quo orders granted in Common Passage operates as breach of injunction when a bunk was removed from the passage - since it is a common passage , the question of breach of status quo orders did not arise- 2015 Telangana & A.P. msklawreports



Law :- Sec.11, Or. 39, rule 2 A C.P.C.

Sub :-
Resjudicata ; 
Contempt of Court ;

Summary :-

A memorandum of understanding dated 30-4-2002 was    
executed between plaintiff and his mother where under plaintiff
is provided passage from his property bearing Door No.7-1-153
to western side of the road.  Plaintiff has complied with the
conditions mentioned in Memorandum and on that, mother  
executed registered gift deed on 5-5-2001 gifting schedule
property and as such, plaintiff has become absolute owner.
          Defendant resisted the claim of plaintiff on the ground that
claim is barred by resjudicata as in the earlier suit filed by
plaintiff in O.S.No.6 of 1994, a clear finding was given that the
suit property was joint passage and that finding would bind both
the parties and therefore, the claim is barred by resjudicata.  It is
also contended that the mother of plaintiff has no right to gift the
common passage and there is no separate municipal number for  
this common passage and it is not the property of any single
individual and therefore, the plaintiff is not entitled for the relief
of declaration.
further submitted that the defendant
herein violated interim order and for that reason, plaintiff filed
contempt case and that the defendant is liable for punishment.
He further submitted that the material filed in C.C. would clearly
show that the shop was removed by the defendant and the same  
would amount to violation of status quo orders.

Trail court dismissed the suit . 
Appellate court allowed the appeal.

1)   Whether the claim of the plaintiff is barred by
resjudicata? and
2)           Whether the defendant has disobeyed the status
quo order and liable for punishment?

Held that

Resjudicata

When there was an earlier
finding in respect of the same property, that was given in the
suits filed by plaintiff himself, his burden is more heavy.  In order
to get the relief of declaration, plaintiff must plead and prove as
to how nature of property is converted from jointness to absolute
right and then only, he can overcome earlier finding with respect
to nature of property.  But here, plaintiff neither pleaded nor
proved as to when this common passage is changed into the
absolute right to the mother of both parties and therefore,
plaintiff cannot get the relief of declaration.

   No doubt, earlier suit O.S.No.6 of 1994 was only perpetual
injunction but even for considering the relief of perpetual
injunction, the court has to incidentally verify the title and in
that process, held that suit property was common passage and
not exclusive property of any of the parties and such finding
would bind both parties herein who are also parties to the earlier
suit.  As rightly pointed out by advocate for appellant-defendant,
learned trial judge has rightly applied principle of resjudicata to
the case on hand but the lower appellate court on surmises and
presumptions reversed such finding which in my view is not a
correct approach.
          For these reasons, I am of the view that lower appellate
court has erred in reversing finding of the trial court with
reference to the application of principle of resjudicata,  as such,
the findings of the lower appellate court are to be set aside.

Contempt of Court -

 According to plaintiff, appellant-defendant herein has
disobeyed the orders by removing the stall and therefore, he is
liable for punishment.
               In view of my findings and observation in point No.1,
with regard to nature of the property, the contention of plaintiff
with regard to violation cannot be accepted.  When the property
is a common passage and even all the parties have equal rights,
the order of status would only convey that the parties have to
enjoy the rights existing as on the date of order and therefore, it
cannot be treated as violation.   For these reasons, I am of the
view that there are no merits in the C.C. and the same is liable to
be dismissed. 

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