JUDGMENT
Satish Kumar Mittal, J.
1. This is plaintiff’s Regular Second Appeal against the judgment of reversal dated 14.5,1982 passed by the District Judge, Ferozepur, vide which judgment and decree of the learned trial Court in favour of the plaintiff-appellant was set aside and his suit for permanent injunction was dismissed.
2. In the instant, case, the dispute is about a plot measuring 16 Marlas shown as ABCD in red colour in the site plan (Ex.D2) situated in village Fategarh Gaheri. The appellant filed the suit for permanent injunction against the defendant, respondents herein, regarding this plot claiming himself to be in possession of the same for the last 20 years and using the same for storing cow dungs and ruru and for tethering of cattle. It was alleged that the respondents, without having any right and interest in the said plot, were adamant to interfere in possession of the appellant on the present pretext that the said plot belonged to the Custodian Department and they had applied for the allotment of the same. The respondents contested the suit. They pleaded that the disputed plot does not belong to the Custodian Department, as alleged by the appellant, but in fact the same was owned and possessed by them. It was alleged that the appellant never remained in possession of this plot. It was further alleged that earlier also the appellant filed a similar suit for permanent injunction with a motive to take forcible possession of the plot in question. The said suit was hotly contested by them. Though initially the learned trial court decreed the suit said but in appeal the same was dismissed and it was held that the appellant was not in possession of the plot in question. Rather the same was found to be in possession of the respondents. It was pleaded that the said judgment and decree passed in a suit between the same appellant pertaining to the same subject matter would operate as res-judicata against the appellant.
3. On the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiff is in possession of plot measuring 16 marlas marked as ABCD? OPP
2. Whether the plaintiff is entitled to the injunction prayed for? OPP
3. Whether the present suit is barred by principle of estoppel and res-judicata? OPD.
4. Relief.
4. The learned trial Court decreed the suit of the appellant. On issue No. 2, it was held that the appellant was in possession of the disputed plot and he was entitled to permanent injunction as prayed for. On issue No. 3, it was held that decision of the previous suit filed by the appellant will not operate as res-judicata against him because cause of action in the instant suit arose only on 10.5.1980 when the respondents threatened the appellant to forcibly dispossess him from the plot in question and immediately thereafter, the appellant filed the instant suit on 15.5.1980.
5. On appeal, the aforesaid judgment and decree passed by the learned trial court was reversed. On issue No. 3, the learned first appellate Court held that the judgment and decree passed against the appellant in the previous suit will operate as res-judicata against the appellant. It was found that the appellant had earlier filed a suit for permanent injunction against the present respondents regarding plot, which is in dispute in the instant suit. Initially, the said suit was decreed by the learned trial Court vide judgment dated 8.5.1978 (Ex.D1). However, in appeal filed by the respondents, the said judgment and decree was set aside by the learned first appellate court vide judgment dated 8.5.1980 (Ex.D3). In the said judgment, it was found that the appellant was not in possession of the disputed plot and the respondents were found in possession of the same. It was held that only within seven days of the passing of the said judgment, the instant suit was filed on 16.5.1980 by the appellant for the same relief. The learned first appellate court also found that the appellant could not explain as to how after the passing of the previous judgment, he got possession of the plot in dispute. Once in the previous litigation, he was found not to be in possession of the plot in question, then it could not be presumed that within seven days he was in possession of the same. This judgment of the learned first appellate court is under challenge in the instant Regular Second Appeal.
6. Learned counsel for the appellant submitted hat while reversing the finding on issue No. 3 and holding that the previous decision between the parties regarding the plot in question will operate as res-judicata, the learned District Judge has erred in law as well as facts. He further submitted that the cause of action in the previous suit and the present suit was entirely different and in case of recurring cause of action, principle of res-judicata will not be applicable. He also submitted that even though the subject matter of the previous suit and the present suit is the same between the some parties but new cause of action had arisen at the time of institution of the suit because the respondents threatened to interfere into peaceful possession of the appellant. He submitted that on issues No. 1 and 2, the appellant was found to be in possession of the plot in question. In such a situation, his suit could not have been dismissed on the ground that the same was barred by principle of resjudicata.
7. After hearing the arguments of learned counsel for the appellant and perusing the record of the case, I do not find any substance in either of the submissions made by the learned counsel for the appellant. It has not been disputed before me that the subject matter of the earlier suit and the present suit is with regard to the same property between the same parties. It is also not disputed that the earlier suit was also for permanent injunction as is the present suit. It is also admitted position that in the earlier suit a finding was recorded by the learned first appellate court vide his judgment dated 8.5.1980 (Ex.D3) that the appellant was not in possession of the plot in question, rather the respondents were found in possession of the same. The present suit was filed on 15.5.1980 i.e. only within only within seven days of he passing of the said judgment. In this suit, the appellant has alleged that the cause of action arose to him 10.5.1980 when the respondents threatened to interfere into his peaceful possession. The appellant has ‘ not explained and there is no evidence as to how the appellant came into possession of the disputed plot after the passing of the judgment dated 8.5.1980 (Ex.D3) against him. In view of the these findings of fact, the learned first appellate court was right in holding that the present suit filed by the appellant is barred by the principle of res-judicata. I do not find any infirmity or illegality in the said finding recorded by the learned first appellate court on issue No. 3. In view of the findings recorded in the earlier suit, the learned trial court was absolutely wrong to record the contrary findings on issues No. 1 and 2 in favour of the appellant, particularly when in the earlier suit he was not found to be in possession of the plot in question.
8. In view of the aforesaid discussion, I do not find any merit in the instant appeal and the same is hereby dismissed with no order as to costs.