CASE NO.: Appeal (civil) 7433 of 1997 PETITIONER: K. SIVARAMAIAH RESPONDENT: RUKMANI AMMAL DATE OF JUDGMENT: 20/11/2003 BENCH: R.C. LAHOTI & ASHOK BHAN JUDGMENT:
JUDGMENT
2003 Supp(6) SCR 12
The following Order of the Court was delivered :
The appellant and respondent are the owners of adjoining properties
situated at lyyasamy Chetty Street, Triplicane, Chennai-5. Both the
properties earlier belonged to M.M. Abdul Shukur Saheb. The appellant
purchased his property described as Door No. 5 (New Door No. 6) under sale
deed dated 28th April, 1975. The property situated on the western side of
the appellant’s property was purchased by the respondent under sale deed
dated 30th June, 1976. The respondent’s property is described as Door No. 4
(New Door No. 5). It appears that at the time of purchase by the appellant
his property was double storeyed i.e. having a ground floor and the first
floor. The appellant demolished the first floor of his building and re-
constructed the first floor and second floor above. In the western wall of
his property situated towards the respondent’s property the appellant
opened three windows in the first floor and three windows and one
ventilator in the second floor at the time of construction of the above
said two floors as stated hereinabove. The respondent’s mother filed the
Original Suit No. 8206/1976 against the appellant seeking a mandatory
injunction directing the appellant to close all the windows and ventilator
overlooking the respondent’s property. The respondent’s mother also claimed
compensation for the damage caused to his eastern wall in the process of
reconstruction by the appellant. According to the respondent’s mother, the
appellant had newly opened all windows and the ventilator overlooking the
respondent’s property through the windows and the ventilator and did not
have any right to do so. The appellant pleaded, inter alia, that the first
floor which existed prior to the new construction and which was demolished
also had three windows overlooking the respondent’s property and,
therefore, the respondent’s mother was not entitled to the mandatory
injunction sought for. The learned Civil Judge who decided the civil suit
by the order dated 26th July, 1979 did not decide the question as to
whether any easmentary right to light and air had accrued to the appellant.
However, the learned Civil Judge found that the windows in the pre-existing
first floor overlooking the respondent’s property did not exist for about
40 years as was urged by the appellant. The learned Civil Judge proceeded
on the legal proposition that a neighbour was not entitled to mandatory
injunction seeking closure of the other neighbour’s windows and ventilator
or any openings overlooking his property and it is always open for any one
to raise a wall on his own property and close the openings in the adjoining
property if the adjoining property owner had not perfected his right to
light and air by prescription extended over 20 years of period. This
judgment has achieved a finality as it was not appealed against by either
party.
In the year 1989, the appellant filed a suit (O.S. No. 7359/1989) against
the respondent, the exact subject matter of the suit is not ascertained as
copies of the pleadings in that suit are not available on record. However,
it appears that the windows and the ventilator overlooking the respondent’s
property were the subject matter of controversy and the appellant was
seeking relief alleging the acquisition of prescriptive right. The suit
came to be dismissed. The plaintiff preferred an appeal registered as FA
312/ 1991. However, the appeal could not be decided on merits as the
appellant sought for withdrawal of the suit with liberty to file a fresh
suit on the same cause of action. The Appellate Court permitted the suit to
be withdrawn with liberty as prayed for and the appeal was dismissed as
infructuous in view of the suit itself having been withdrawn.
In view of the permission allowed by the Appellate Court in FA No.
312/1991, the appellant filed a fresh Suit registered as OS No. 234/1994.
The appellant canvassed in his plaint, right for light and air through the
six windows and the ventilator situated in the western wall of his property
having been acquired by way of prescription. He also sought for a
preventive injunction restraining the respondent from raising any
construction which would have the effect of blocking the openings in his
western wall. The suit was contested by the respondent by raising all
possible defences including the plea that the appellant’s suit was barred
by res judicata. It was submitted that in earlier two rounds of litigation
the appellant has failed in establishing his right of easement and the same
right of easement is sought to be established in the present suit which
would be barred by Section 11 of the Code of Civil Procedure. Though all
the issues were tried but the trial court dismissed the appellant’s suit
solely on the finding that appellant’s suit was barred by res judicata.
This finding of the trial court has been upheld in First Appeal and also in
Second Appeal preferred by the appellant.
The short question which arises for decision in this appeal is whether the
appellant’s suit filed in the year 1994 can be said to be barred by res
judicata. Having heard the learned counsel for the parties, we are
satisfied that the High Court and the two Courts below have committed an
error of law in holding the suit filed by the appellant to be barred by res
judicata. In the present suit instituted in the year 1994, the appellant
shall have to establish the acquisition of prescription right of easement
under Section 15 of the Indian Easements Act, 1882 by reference to the date
of the institution of the suit. This issue did not and could not have
arisen for decision either by way of ground of attack in the 1989 suit
filed by the appellant or by way of defence in the 1976 suit filed by the
respondent’s mother. Moreover, the 1976 suit filed by the respondent’s
mother was dismissed insofar as relief of injunction sought for by the
respondent’s mother against the appellant is concerned. It was an admitted
case of the parties, as has been noted by the trial court also in its
judgment dated 4th August, 1979, that the openings in the western wall of
the appellant had existed and yet respondent’s mother was held not entitled
to the grant of compensation because in the opinion of the trial court the
remedy of the respondent’s mother was not to seek an injunction against the
appellant but to raise a wall on her own property so as to block the
openings in the wall of the appellant standing on his own property. By no
stretch of imagination the judgment dated 4th August, 1979 can constitute
res judicata for the purpose of the present situation.
So far as the Original Suit No. 7359/1989 is concerned, the findings
recorded in the judgment therein could have constituted res judicata but
the fact remains that the Appellate Court permitted the withdrawal of the
suit and once the suit has been permitted to be withdrawn all the
proceedings taken therein including the judgment passed by the trial court
have been wiped out. A judgment given in a suit which has been permitted to
be withdrawn with the liberty of filing a fresh suit on the same cause of
action cannot constitute res judicata in a subsequent suit filed pursuant
to such permission of the Court.
We are, therefore, of the opinion that the trial court ought to have
examined the evidence, oral and documentary, on other issues as well and
recorded findings thereon.
The appeal is allowed, the judgment and decree of the trial court, the
First Appellate Court as also of the High Court are set aside. The case is
remanded to the trial court for hearing and decision afresh except on the
issue of res judicata which as we have already held does not arise for
decision. The appeal stands disposed of in the above said terms. The trial
court shall notice the parties for appearance before it and then appoint a
date for hearing.