NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4736-4737 OF 2011
ANIL KUMAR MODI & ORS.
Appellant(s)
VERSUS
TARSEM KUMAR GUPTA
Respondent(s)
JUDGMENT
B.R. GAVAI,J.
1.
These appeals challenge the judgment and order
passed by the High Court of Punjab and Haryana at
Chandigarh dated 26.08.2009 affirming the order
passed by the Additional District Judge, Sangrur
dated 28.10.2006 whereby the Additional District
Judge had allowed the appeal of the respondent-
plaintiff and decreed the suit.
2.
This is a third round of litigation between the
parties.
3.
In the first round, the respondent-plaintiff
had filed a suit for injunction against the
Municipal
Committee
as
well
as
the
present
appellants-defendants for removing the latrine
blocks in the 10 feet passage between the houses of
the two parties. The said suit was dismissed holding
that, though the respondent-plaintiff had a right
to the said passage in view of sale deed dated
11.10.1954, he had no right to construct the toilet
and was directed to remove the latrine as there also
exists
an
easementary
right
of
the
present
appellants-defendants to open the windows and
ventilators in the said passage. In an appeal
carried against the same by the respondent-
plaintiff, the First Appellate Court held that the
respondent-plaintiff did not have exclusive right
for the said passage. It affirmed the order passed
by the trial Judge. Further, the Second Appeal
carried
by
the
respondent-plaintiff
was
also
dismissed.
4.
In the second round, the respondent-plaintiff
filed a suit against the appellants-defendants as
they were attempting to raise a construction and
open a door in the disputed passage.
5.
During the pendency of the second suit, the
third suit, i.e., the present suit came to be filed
on 01.06.2000 seeking an order of injunction
restraining the present appellants-defendants from
removing the bricks raised by the respondent at
points A, B, C, D in the site plan. The appellants-
defendants also filed a counter claim praying for
decree for removal of the bricks from that passage.
6.
During the pendency of the third suit, in view
of the statement made by the appellants-defendants
that, they will not open the door/gate and they will
only open windows in the common passage, the
respondent-plaintiff withdrew the second suit.
7.
The Trial Court vide order dated 30.10.2004
dismissed the third suit and decreed the counter
claim of the appellants-defendants. Appeals were
filed by the respondent-plaintiff against the said
decree.
8.
The First Appellate Court reversed the judgment
and order of the Trial Court and decreed the suit
of the respondent-plaintiff and dismissed the
counter claim.
9.
In the Second Appeals preferred by the present
appellants-defendants, the High Court affirmed the
order of the First Appellate Court and dismissed the
said Second Appeals. Being aggrieved thereby, the
present appeals are filed.
10.
Shri Ankit Goel, learned counsel appearing on
behalf of the appellants-defendants submits that the
First Appellate Court as well as High Court have
grossly erred in interfering with the judgment and
decree passed by the Trial Court. He submits that,
in the first round, there was a clear finding of the
First Appellate Court that the passage was a common
passage.
11.
He further submitted that the said finding was
affirmed by the High Court in the Second Appeal and
as such, it operates as res judicata. It is also
submitted that in view of the said finding it was
not correct for the First Appellate Court and the
High Court to have taken a view contrary to the
finding of the Appellate Court in the first round.
He relies on the judgments of this Court in the
cases of R. Unnikrishnan & Anr. Vs. V.K. Mahanudevan
and Ors.1 and K. Arumuga Velaiah Vs. P.R. Ramasamy
& Anr.2 in that regard.
12.
Shri Gagan Gupta, learned counsel appearing for
the respondent-plaintiff, on the contrary, submits
that the First Appellate Court as well as the High
Court on the perusal of the sale deed had rightly
come to a conclusion that the respondent-plaintiff
was entitled to exclusive possession of the said
passage and the only right that was available to the
present appellants-defendants was of opening windows
and ventilators in the said passage. He, therefore,
submits that no interference is warranted in the
present appeals.
1 (2014) 4 SCC 434
2 (2022) 3 SCC 757
13.
We have perused all the judgments in the first
round as well as the third round.
14.
In the first round, the only question that fell
for consideration before the High Court was as to
whether the respondent-plaintiff was entitled to
construct the latrine in the passage. The finding
of the Trial Court was that, though the respondent-
plaintiff was entitled to possession thereof, he
could not construct latrine in as much as it
adversely affected the easement rights of the
appellants-defendants.
15.
The Appellate Court, therefore, in the first
round, ought to have restricted its findings to the
said issue. The question as to whether the
appellants-defendants were also entitled to any
right in the said passage did not fall for
consideration in the said proceedings. In that view
of the matter, there was no occasion for the
Appellate Court in the first round to have made any
observation with regard thereto.
16.
In the present suit, the question as to whether
the respondent-plaintiff was entitled to exclusive
possession
of
the
said
passage
fell
for
consideration. The Trial Court dismissed the suit.
The First Appellate Court, on the basis of the
interpretation of the sale deed, came to a finding
that the respondent-plaintiff was entitled to
exclusive possession of the said passage and the
right of the appellants-defendants was limited only
to opening of windows and ventilators in the said
passage. The High Court in Second Appeals has
affirmed the said findings of the First Appellate
Court.
17.
Though, Mr. Ankit Goel, learned counsel,
strenuously argued, relying on certain judgments of
this Court, that the findings in an earlier
proceeding could operate as res judicata in
subsequent proceedings, in our view, the said
judgments would not be applicable in the facts of
the present case.
18.
The issue in the first suit was limited only
as to whether the respondent-plaintiff has a right
to construct the latrine in the passage. The issue
as
to
whether
the
respondent-plaintiff
was
exclusively entitled to possession thereof did not
fall for consideration in the earlier round, whereas
in the third round, the said issue directly fell for
consideration.
19.
In that view of the matter, we do not find any
reason to interfere with the concurrent orders of
the First Appellate Court and the High Court.
20.
The appeals are dismissed in the above terms.
Pending applications, if any, stand disposed of. No
order as to costs.
….........................J
(B.R. GAVAI)
...........................J
(C.T. RAVIKUMAR)
New Delhi
September 14, 2022