{"id":40370,"date":"2010-08-04T00:00:00","date_gmt":"2010-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raj-singh-vs-bhup-singh-through-lr-surat-singh-on-4-august-2010"},"modified":"2019-03-13T03:43:32","modified_gmt":"2019-03-12T22:13:32","slug":"raj-singh-vs-bhup-singh-through-lr-surat-singh-on-4-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raj-singh-vs-bhup-singh-through-lr-surat-singh-on-4-august-2010","title":{"rendered":"Raj Singh vs Bhup Singh Through Lr Surat Singh on 4 August, 2010"},"content":{"rendered":"
Delhi High Court<\/div>\n
Raj Singh vs Bhup Singh Through Lr Surat Singh on 4 August, 2010<\/div>\n
Author: Indermeet Kaur<\/div>\n
*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                  Judgment Reserved on: 30.07.2010\n                  Judgment Delivered on: 04.08.2010\n\n+            R.S.A.No. 71\/1987 & C.M.Appl.1507\/1996\n\n\nRAJ SINGH                                 ...........Appellant\n                         Through:    Mr.Sanjay Kr.Pathak and\n                                     Ms.Kaomudi Kiran, Advocates.\n\n                   Versus\n\nBHUP SINGH\nTHROUGH LR SURAT SINGH                          ..........Respondent\n                 Through:            Mr.Surat Singh, LR of\n                                     respondent in person.\n\nCORAM:\nHON'BLE MS. JUSTICE INDERMEET KAUR\n\n     1. Whether the Reporters of local papers may be allowed to\n        see the judgment?\n\n     2. To be referred to the Reporter or not?             Yes\n\n     3. Whether the judgment should be reported in the Digest?\n                                                          Yes\n\nINDERMEET KAUR, J.\n<\/pre>\n
1.     Raj Singh, the appellant had filed a suit for mandatory and<\/p>\n
permanent injunction against his cousin Bhup Singh. Plaintiff was<\/p>\n
the owner of house no.84, Nangloi Jat, Delhi. This house had come<\/p>\n
to his share by way of a family settlement in the year 1952.<\/p>\n
Defendant was the owner of property no.83 and 85 situated on<\/p>\n
either side of the lane facing the property of the plaintiff.        In<\/p>\n
property no.83 a two storeyed house was constructed which did<\/p>\n
not have staircase. Defendant was using a wooden staircase for<\/p>\n
access to the first floor of the said building. Later on defendant<\/p>\n
had put up a temporary wooden plank as an over bridge to pass<\/p>\n
through his house. In 1968 defendant had constructed the ground<\/p>\n
floor and the first floor of house no.85. He also tried to construct<\/p>\n
RSA No.71\/1987                                            Page 1 of 13<\/span>
\n pakka over bridge about 8 feet in width to connect house no.83<\/p>\n
with the newly constructed room on the first floor of house no.85<\/p>\n
which blocked the frontage of property no.84 which had fallen to<\/p>\n
the share of the plaintiff.   The plaintiff and the owner of the<\/p>\n
adjoining houses objected to this construction. Property no.84 was<\/p>\n
at that time only a vacant plot but the house was to be constructed<\/p>\n
and a proposed over bridge sought to be constructed by the<\/p>\n
defendant would have marred the property of the plaintiff<\/p>\n
defeating his easement rights.\n<\/p>\n
2.    This suit was contested. Primary objection was that this suit<\/p>\n
is barred by the principle of res judicata as an earlier suit on the<\/p>\n
same cause of action had been instituted by the brother of the<\/p>\n
plaintiff namely Sultan Singh in respect of the same property in<\/p>\n
which the same relief had been sought. The judgment of the said<\/p>\n
suit dated 14.2.1977 Ex.D-1 was proved. On merits as well the suit<\/p>\n
was contested.\n<\/p>\n
3.    Trial judge had framed five issues. The first issue related to<\/p>\n
the application of the doctrine of res judicata to the present<\/p>\n
proceedings. Trial judge had held that Ex.D-1 i.e. the judgment<\/p>\n
dated 14.2.1977 was pronounced in a suit in respect of the same<\/p>\n
property which was a suit instituted by Sultan Singh on his behalf<\/p>\n
as also on behalf of the other co-sharers of the property which also<\/p>\n
included the present appellant i.e. Raj Singh.   It was a bonafide<\/p>\n
litigation which Sultan Sigh had pursued. Appeal filed by Sultan<\/p>\n
Singh against the said judgment had been withdrawn by him. The<\/p>\n
order withdrawing the appeal dated 12.8.1980 was proved as<\/p>\n
Ex.D-2. The application Ex.P-3 seeking permission to withdraw the<\/p>\n
appeal was also proved on record.     Trial judge had held that in<\/p>\n
RSA No.71\/1987                                            Page 2 of 13<\/span>
\n view of this withdrawal of the appeal by Sultan Singh, the<\/p>\n
judgment    Ex.D-1     had    become     final   between     the      parties.<\/p>\n
Explanation VI of Section 11 of the Code of Civil Procedure<\/p>\n
(hereinafter referred to as \u201ethe Code\u201f) was attracted; the present<\/p>\n
plaintiff was interested in the bonafide litigation pursued by his<\/p>\n
brother Sultan Singh; the said judgment operated as res judicata.<\/p>\n
The trial court had further held that the suit is also barred by<\/p>\n
limitation under Article 113 of the Limitation Act. The over bridge<\/p>\n
had been constructed in the year 1968; suit having been filed on<\/p>\n
10.10.1979 was beyond the period of limitation. On both these<\/p>\n
grounds the suit was dismissed.\n<\/p>\n
4.    On 10.8.1987, the first appellate court had endorsed this<\/p>\n
finding of the Civil Judge. The relevant extract of the said findings<\/p>\n
read as follows:\n<\/p>\n
      “7.    I have heard the learned counsel for the parties and
\n      have perused the pleadings and documents on the record. A
\n      perusal of Judgment Ex.D-1 in the suit filed by Sultan Singh,
\n      brother of the plaintiff against the defendant and that suit was
\n      filed by the brother of the plaintiff in the year 1971 and the
\n      plaintiff who has appeared as PW-1 in his cross-examination
\n      admitted that property no.84 belongs to him and his brother
\n      Sultan Singh; that suit was dismissed vide Judgment Ex.D-1
\n      and even the appeal filed by the brother of the plaintiff proved
\n      on the record as Ex.D-2 was dismissed as withdrawn and vide
\n      Judgment Ex.D-1 it was held that Sultan Singh, brother of the
\n      plaintiff has no easementary rights upon the land nor the
\n      threatened construction is going to materially effect the
\n      easementary rights, if any. The present suit filed by the
\n      plaintiff who is other co-owner of the property is thus, not
\n      maintainable and is clearly barred under explanation VI to
\n      section 11 CPC. The judgment relied upon by the ld.trial
\n      court is thus fully applicable to the facts of this case and issue
\n      no.1 has been rightly decided by the learned trial court
\n      against the plaintiff and in favour of the defendant. As the
\n      Judgment in that suit filed by Sultan Singh in respect of
\n      subject matter in this suit has already been dismissed vide
\n      Judgment Ex.D-1 hence the same operates as resjudicata, the
\n      learned trial court has rightly dismissed the suit of the
\n      plaintiff for mandatory and permanent injunction. Moreover,
\n      the evidence on the record show that the construction in
\n      question was done in the year 1968, the present suit has been
\n      filed in the year 1979, the learned trial court has rightly
\n      refused to grant the equitable relief of injunction to the
\n      plaintiff on account of laches. The finding of the learned trial
\nRSA No.71\/1987                                                     Page 3 of 13<\/span>
\n       court are based upon evidence on the record and, therefore,
\n      the findings of the trial court are affirmed and Judgment and
\n      decree of the trial court is up-held.”\n<\/p><\/blockquote>\n
5.    This is a second appeal.       On 23.9.1987 the appeal was<\/p>\n
admitted and the following substantial question of law was<\/p>\n
formulated:\n<\/p>\n
      “Whether in the facts and circumstances of the present case,
\n      withdrawal of appeal by Sultan Singh would operate as res
\n      judicata against the Plaintiff?”\n<\/p><\/blockquote>\n
6.    Learned counsel for the appellant has addressed lengthy<\/p>\n
arguments. It is submitted that the courts below had gravely erred<\/p>\n
in applying the doctrine of res judicata; explanation VI is not<\/p>\n
attracted. Suit filed by Sultan Singh was on his own behalf; it was<\/p>\n
not a representative suit; it was not filed bonafide; it did not in any<\/p>\n
manner represent the rights of the plaintiff; in fact, the other two<\/p>\n
brothers namely Ratan Singh and Jai Kishan had been arrayed as<\/p>\n
defendant no.3 and defendant no.4 in this suit filed by Sultan<\/p>\n
Singh; Raj Singh, the present appellant was nowhere in the<\/p>\n
picture; the judgment Ex.D-1 is not binding on the present<\/p>\n
appellant. Even otherwise, an appeal had been preferred by Sultan<\/p>\n
Singh; he had thereafter in his application for permission o<\/p>\n
withdraw the appeal (Ex.P-3) categorically stated that he seeks this<\/p>\n
permission for the reason that his brother Raj Singh had also filed<\/p>\n
a suit which is pending disposal and the matters in issue being<\/p>\n
subjudice in that suit, permission was sought to withdraw the<\/p>\n
appeal to get the matter adjudicated in that suit. Attention has<\/p>\n
been drawn to the order Ex.D-2 which had been passed on the said<\/p>\n
application. This order is dated 12.8.1980. It categorically records<\/p>\n
that permission is granted to Sultan Singh to withdraw the appeal<\/p>\n
mentioning therein \u201ereasons sufficient\u201f.    It is submitted that it is<\/p>\n
thus clear that the appeal had been withdrawn by Sultan Singh
\nRSA No.71\/1987                                               Page 4 of 13<\/span>
\n only for the reason that the same matters were in issue in the suit<\/p>\n
of Raj Singh upon which an adjudication had been sought by Sultan<\/p>\n
Singh, which was the reason why he had withdrawn the said<\/p>\n
appeal. As such the question of the matter having been finally<\/p>\n
decided did not arise.\n<\/p>\n
       Reliance       has   been   placed   upon    AIR   1970    SC     809<\/p>\n
Shashibhushan Prasad Mishra vs. Babuaji Rai to support a<\/p>\n
submission that where an appeal has been filed, the decision of the<\/p>\n
trial court loses its character of finality. This judgment has been<\/p>\n
relied upon to advance the proposition that the appeal filed by<\/p>\n
Sultan Singh had made the judgment Ex.D-1 lose its finality and<\/p>\n
had become a dead-wood between the parties.\n<\/p>\n
       It is submitted that even otherwise, the judgment of two<\/p>\n
courts below holding that the principle of res judicata is applicable<\/p>\n
is misconstrued for the reason that the pleadings in the earlier suit<\/p>\n
i.e. the suit filed by Sultan Sigh were never before the subsequent<\/p>\n
court in the absence of which it could not be conclusively<\/p>\n
concluded as to whether this doctrine would or would not be<\/p>\n
applicable. For this proposition reliance has been placed upon AIR<\/p>\n
2000    NOC      20    (Andh.Pra.)   Kesarapu      Manikyalu   vs.    Venna<\/p>\n
Perumalllayya (dead) & Ors. wherein it was held that where<\/p>\n
pleadings in the previous suit between the same parties had not<\/p>\n
been filed on record and only the judgment is forthcoming, the<\/p>\n
question of res judicata could not have been decided. For the same<\/p>\n
proposition reliance has been placed upon AIR 1976 SC 1569 Syed<\/p>\n
Mohd. Sale Labbai (dead) by LRs and Ors. vs. Mohd. Hanifa (dead)<\/p>\n
by LRs and Ors. wherein the Supreme Court had held that the best<\/p>\n
method to decide the question of res judicata is to put forward the<\/p>\n
RSA No.71\/1987                                                   Page 5 of 13<\/span>
\n respective pleadings of the parties in their previous suits and then<\/p>\n
to find out what has been decided by the judgment which will<\/p>\n
operate as res judicata.\n<\/p>\n
      Counsel for the appellant has further submitted that cause of<\/p>\n
action in the two suits i.e. the suit filed by Sultan Singh and the<\/p>\n
present suit filed by Raj Singh are even otherwise distinct and<\/p>\n
different. The suit filed by Sultan Singh sought a restraint order<\/p>\n
against Bhup Singh from constructing the over bridge on the first<\/p>\n
floor of his house over the public street in front of the plaintiff\u201fs<\/p>\n
house no.84 with a further direction to him to demolish the Karries<\/p>\n
laid down by the defendant for the construction of the said over<\/p>\n
bridge. This submission has been made on the basis of the trial<\/p>\n
court record which has been requisitioned which includes the<\/p>\n
judgment Ex.D-1. The plaint of the suit no.84\/1971 which was the<\/p>\n
suit filed by Sultan Singh is however not on record. The second<\/p>\n
suit i.e. the suit no.542\/1979 filed by Raj Singh was also a suit for<\/p>\n
mandatory and permanent injunction. The prayer made in this suit<\/p>\n
was that the defendant Bhup Singh be ordered to remove the over<\/p>\n
bridge constructed by him in front of plaintiff\u201fs property no.84<\/p>\n
blocking the frontage of his property and to restrain the defendant<\/p>\n
by a decree of permanent injunction from making any further<\/p>\n
construction on the over bridge like a staircase etc. It                  is<\/p>\n
contended that the cause of action in both the suits is distinct and<\/p>\n
as such res judicata is clearly inapplicable.   For this proposition<\/p>\n
reliance has been placed upon 2009 (2) Arb.LR 182 (Delhi)<\/p>\n
Bhartiya Construction Co. vs. Delhi Development Authority<\/a> to<\/p>\n
support his submission that where the subsequent dispute was not<\/p>\n
RSA No.71\/1987                                             Page 6 of 13<\/span>
\n even in existence at the time when the earlier dispute had been<\/p>\n
raised this doctrine would be inapplicable.\n<\/p>\n
7.    Arguments have been countered by the respondent. He has<\/p>\n
appeared in person.       Written submissions have been placed on<\/p>\n
record. It is stated that the courts below had rightly applied the<\/p>\n
doctrine as contained in Section 11 of the Code.<\/p>\n
8.    The substantial question of law as aforenoted has to be<\/p>\n
answered by this court. That apart, it is urged by learned counsel<\/p>\n
for the appellant that all the grounds contained in his appeal also<\/p>\n
raise questions of law which have to be dealt with by this court.<\/p>\n
He has however not argued that these grounds which are almost<\/p>\n
24 in number raise any substantial question of law.<\/p>\n
9.    Be that as it may, this court shall consider this submission of<\/p>\n
the learned counsel for the appellant. All the grounds urged in the<\/p>\n
memo of appeal are almost all overlapping one and other and<\/p>\n
border upon the applicability of the doctrine of res judicata. The<\/p>\n
second legal proposition which can be deduced is on the<\/p>\n
applicability of the law of limitation and whether the same had<\/p>\n
been correctly construed.       The question of limitation is a mixed<\/p>\n
question of law and fact.       It does not always border on a legal<\/p>\n
proposition; depending upon the evidence adduced before the fact<\/p>\n
finding court, the court has to draw the conclusion as to from<\/p>\n
which date the period of limitation has to be computed.              This<\/p>\n
question was decided by the courts below on the basis of the<\/p>\n
evidence adduced.        While dealing with issue no.4, trial judge<\/p>\n
relying upon the evidence of PW-3 and PW-4 had held that the suit<\/p>\n
is   time-barred.   In   this   context,   the   observations   of   the<\/p>\n
Supreme Court in Dudh Nath Pandey (dead) by LRs vs. Suresh<\/p>\n
RSA No.71\/1987                                              Page 7 of 13<\/span>
\n Chandra Bhattasali (dead) by LRs. AIR 1986 SC 1509 are relevant<\/p>\n
which inter alia read as under:\n<\/p>\n
      “6. … … …The High Court however reversed the finding of the
\n      First Appellate Court on the question of limitation relying on
\n      the so-called admission of the defendant in the written
\n      statement and the evidence of the witnesses produced on
\n      behalf of the defendant. Virtually, the High Court has made a
\n      fresh appraisal of the evidence and has come to a different
\n      finding contrary to the finding recorded by the First Appellate
\n      Court which the High Court could not do in the exercise of
\n      power under Section 100 of the CPC. Even on merits, if the
\n      High Court had to rely upon the alleged admission in the
\n      written statement, the admission must be taken as a whole and
\n      it is not permissible to rely on a part of the admission ignoring
\n      the other. The High Court, in our opinion, has erred in making
\n      a fresh appraisal of the evidence to come to a different
\n      conclusion.”<\/p><\/blockquote>\n
      This court is thus of the view that this question being fact<\/p>\n
based does not raise a substantial question of law. As such this<\/p>\n
court has to only answer the substantial question of law as<\/p>\n
formulated on 23.9.1987.\n<\/p>\n
10.   It is an admitted case that Sultan Singh, the plaintiff in the<\/p>\n
first suit and Raj Singh, the plaintiff in the second suit are real<\/p>\n
brothers. They are sons of Ram Singh. Ram Singh had four sons;<\/p>\n
apart from Sultan Singh and Raj Singh there were Ratan Singh and<\/p>\n
Jai Kishan. Sultan Singh in the first suit filed by him had arrayed<\/p>\n
Ratan Singh and Jai Kishan as defendant no.3 and defendant no.4.<\/p>\n
Ratan Singh in the said proceedings had come into the witness box<\/p>\n
as PW-3 in support of his brother Sultan Singh. Sultan Singh had<\/p>\n
been examined as PW-4. It is not the case of the parties that the<\/p>\n
interests of Sultan Singh and Raj Singh are in conflict. They are in<\/p>\n
fact common. The application Ex.P-3 filed by Sultan Singh seeking<\/p>\n
permission to withdraw his appeal states that since the dispute<\/p>\n
raised by him was covered by the dispute now raised by Raj Singh<\/p>\n
in his second suit, Sultan Singh wished to withdraw the appeal in<\/p>\n
RSA No.71\/1987                                                  Page 8 of 13<\/span>
\n order that the suit of Raj Singh could be adjudicated upon. Para 3<\/p>\n
of the application reads as:\n<\/p>\n
      “That the said suit filed by Raj Singh is an exhaustive one
\n      and will finally decide the rights of the parties”<\/p>\n
11.   These averments made it clear that Sultan Singh was<\/p>\n
litigating bonafide for and on behalf of his other co-sharers<\/p>\n
brothers including Raj Singh. It was for this reason that his brother<\/p>\n
Ratan Singh had come into the witness box as PW-3 in his support.<\/p>\n
The reason for the withdrawal of the appeal by Sultan Singh was<\/p>\n
only because Raj Singh had filed a more comprehensive suit.<\/p>\n
12.   As such the bonafides of Sultan Singh were not and could not<\/p>\n
be in dispute; interest of Sultan Singh and Raj Singh were<\/p>\n
common; they both sought mandatory and permanent injunction<\/p>\n
against their cousin Bhup Singh who was the owner of property<\/p>\n
no.83 and 85 which had effected the easement rights of Raj Singh<\/p>\n
and Sultan Singh who were owning property no.84.<\/p>\n
13.   Section 11 of the Code has engrafted the doctrine of res<\/p>\n
judicata. Explanation VI of Section 11 of the Code reads as under:<\/p>\n
      11. … … …\n<\/p><\/blockquote>\n
      … … … ..\n<\/p><\/blockquote>\n
      Explanation VI – Where persons litigate bona fide in respect
\n      of a public right or of a private right claimed in common for
\n      themselves and others, all person interested in such right
\n      shall, for the purposes of this section, be deemed to claim
\n      under the persons so litigating.\n<\/p><\/blockquote>\n
14.   To attract this provision to a private right it must be<\/p>\n
established that the plaintiff in the first suit was litigating bonafide<\/p>\n
in respect of a private right claimed in common for himself and the<\/p>\n
others i.e. all other person interested in such right shall, for the<\/p>\n
purposes of this Section would be deemed to claim under the<\/p>\n
RSA No.71\/1987                                                 Page 9 of 13<\/span>
\n persons so litigating. It is clear that Section 11 read with its<\/p>\n
explanation VI leads to the result that a decree passed in suit<\/p>\n
instituted by persons to which explanation VI applies will bar<\/p>\n
further claims by persons interested in the same right in respect of<\/p>\n
which the prior suit had been instituted.        Explanation VI thus<\/p>\n
illustrates one aspect of constructive res judicata. Of course, the<\/p>\n
earlier litigation must also be filed bonafide. This statutory<\/p>\n
provision is clearly applicable to the facts of the instant case.<\/p>\n
15.   The appeal withdrawn by Sultan Singh on 12.8.1980 did not<\/p>\n
make Ex.D-1 any less binding as has been contended.             In fact,<\/p>\n
Ex.D-1 then had attained a finality. The judgment of S.P.Mishra<\/p>\n
(supra) relied upon by the counsel for the appellant has no<\/p>\n
application. The ratio of which was that only when the matter is<\/p>\n
subjudice and an appeal is pending till that time the judgment of<\/p>\n
the trial court loses its character. It nowhere states if an appeal is<\/p>\n
then withdrawn, the judgment of the trial court would become a<\/p>\n
nullity.\n<\/p>\n
16.   The next submission of the learned counsel for the appellant<\/p>\n
that the doctrine of res judicata cannot be applied where the cause<\/p>\n
of action in the two suits is distinct is also without any force. The<\/p>\n
appellant cannot be allowed to blow hot and cold at the same time.<\/p>\n
On the one hand, appellant has submitted that Sultan Singh had<\/p>\n
withdrawn his appeal as he wished that the second suit filed by the<\/p>\n
appellant i.e. Raj Singh be adjudicated upon; this was an implied<\/p>\n
admission on the part of the appellant that the cause of action in<\/p>\n
the first suit filed by him and the second suit filed by Raj Singh was<\/p>\n
the same; it was obviously for this reason that Sultan Singh had<\/p>\n
RSA No.71\/1987                                               Page 10 of 13<\/span>
\n withdrawn the appeal. In the same breadth, the appellant cannot<\/p>\n
now contend that the cause of action in the two suits was different.<\/p>\n
17.   Perusal of Ex.D-1 i.e. the judgment in the case of Sultan<\/p>\n
Singh shows that the contents of the plaint have been recorded in<\/p>\n
detail on page 3 and 4. Four issues had been framed in the suit.<\/p>\n
Defence of Bhup Singh was that the chhajja (over bridge) in<\/p>\n
question i.e. in front of the property of the plaintiff had been<\/p>\n
constructed by the grand-father of the plaintiff.       For the said<\/p>\n
purpose, PW-1 Harphool Singh, PW-2 Ratan Singh and PW-4 Sultan<\/p>\n
Singh had been examined. PW-3 and PW-4 were the co-owners of<\/p>\n
this property.   PW-2 Chaman Singh was an architect who had<\/p>\n
prepared the site plan.    Seven witnesses had been examined on<\/p>\n
behalf of the defendant; DW-3 Jagat Singh, DW-4 Om Prakash and<\/p>\n
DW-5 Dhan Singh who were independent witnesses of the<\/p>\n
neighbourhood had been relied upon by the court. They had stated<\/p>\n
that the \u201echhajja\u201f (over bridge) was in existence since the last 25-30<\/p>\n
years. Ex.DW-1\/1 which was an order of the Circle Panchayat also<\/p>\n
evidence that \u201ethe chajja\u201f was an old construction; only part of it<\/p>\n
was a new construction. This had been further fortified by a spot<\/p>\n
inspection conducted by the Sub-Judge in the case of Sultan Singh<\/p>\n
wherein it was an admitted fact that the chajja (over bridge) was in<\/p>\n
existence prior to 31.7.1971 i.e. before the filing of the suit by<\/p>\n
Sultan Singh. This has been recorded in the order dated 25.5.1983<\/p>\n
while disposing of an application under Order 39 of the Code.<\/p>\n
Further the easement rights of the plaintiff were not disturbed. In<\/p>\n
view of these findings contained in Ex.D-1 suit of Sultan Singh had<\/p>\n
been dismissed. After the withdrawal of the appeal on 12.8.1980<\/p>\n
Ex.D-1 has attained a finality.   In the second suit it is the same<\/p>\n
RSA No.71\/1987                                             Page 11 of 13<\/span>
\n questions of fact which have again been raised and disputed by Raj<\/p>\n
Singh who is second brother of Sultan Singh. Interest of Raj Singh<\/p>\n
and Sultan Singh is common; they are claiming through one and<\/p>\n
other. As already noted explanation VI of Section 11 is attracted;<\/p>\n
all the other ingredients of the principle of res judicata also stand<\/p>\n
meted. The first suit and the second suit are between the same<\/p>\n
parties; the issues which have arisen for decision are the same.<\/p>\n
The first and the second suit were both suits for mandatory and<\/p>\n
permanent injunction seeking the same reliefs. The prayer in the<\/p>\n
first suit was that the defendant be directed to demolish the<\/p>\n
Karries laid down by him for the construction of this chhajja\/over<\/p>\n
bridge.   In this suit it was held that the \u201echhajja\u201f was an old<\/p>\n
construction and already in existence. The prayer in the second<\/p>\n
suit was that the chhajja which stood completed be demolished by<\/p>\n
way of a mandatory injunction. The plea that the cause of action in<\/p>\n
the two suits is distinct is clearly contrary to the earlier plea raised<\/p>\n
by the appellant wherein he has stated that Sultan Singh had<\/p>\n
withdrawn his appeal only for the reasons that the case of Raj<\/p>\n
Singh could be adjudicated upon; inevitable conclusion is that the<\/p>\n
second suit was based on the same cause of action; these contrary<\/p>\n
stands taken by the appellant take him nowhere. The judgment of<\/p>\n
Bhartiya Construction (supra) is clearly inapplicable to the facts of<\/p>\n
the present case.\n<\/p>\n
18.   To decide the plea of res judicata, the identity in the suit<\/p>\n
proceedings has to be established; needless to state that this can<\/p>\n
be founded by looking into the pleadings, the issues and the<\/p>\n
judgment in the previous suit. However, in a given case where only<\/p>\n
the copy of the judgment of the previous suit is filed in proof of<\/p>\n
RSA No.71\/1987                                               Page 12 of 13<\/span>
\n plea of res judicata and where the said judgment contains<\/p>\n
exhaustive or requisite details, this statement of the pleadings and<\/p>\n
the issues may be taken as enough proof from the said judgment.<\/p>\n
This has been held by the Supreme Court in Smt.V.Rajeshwari vs.<\/p>\n
T.C.Saravanabava<\/a> 2004 (1) BLJR 524.         In the instant case, the<\/p>\n
judgment Ex.D-1 on page 3-4 has given an exhaustive detail of the<\/p>\n
readings of the plaint. These factual submissions even otherwise<\/p>\n
were never in dispute; as such this submission of the learned<\/p>\n
counsel for the appellant that in the absence of the plaint of the<\/p>\n
first suit (i.e. of the suit filed by Sultan Singh) the question of res<\/p>\n
judicata could not be decided is also without any force.<\/p>\n
19.   There is no merit in the appeal. Appeal as also the pending<\/p>\n
application is dismissed.\n<\/p>\n<\/p>\n
                                           INDERMEET KAUR, J.\n<\/p>\n
AUGUST 04, 2010
\nrb<\/p>\n
RSA No.71\/1987                                              Page 13 of 13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Raj Singh vs Bhup Singh Through Lr Surat Singh on 4 August, 2010 Author: Indermeet Kaur * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 30.07.2010 Judgment Delivered on: 04.08.2010 + R.S.A.No. 71\/1987 & C.M.Appl.1507\/1996 RAJ SINGH ………..Appellant Through: Mr.Sanjay Kr.Pathak and Ms.Kaomudi Kiran, Advocates. Versus BHUP […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-40370","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nRaj Singh vs Bhup Singh Through Lr Surat Singh on 4 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raj-singh-vs-bhup-singh-through-lr-surat-singh-on-4-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raj Singh vs Bhup Singh Through Lr Surat Singh on 4 August, 2010 - 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