Dina Nath Prasad and Another vs Rajendra Prasad and Others

V.N. Sinha, J.—Heard Sri S.S. Dwivedi on behalf of the petitioner. None appears on behalf of other side even though notice was issued to them and appearance has been filed on behalf of opposite party nos. 1 to 3. This civil revision application is directed against the order 17.10.01 passed by the 6th Additional District Judge, Chapra in Misc. Appeal no. 42/98 by which the learned appellate court has affirmed the order dt. 26.3.98 passed by the 1st Munsif, Chapra in Title suit no. 53/89 whereunder the said suit was dismissed as barred by res judicata on the finding that in the earlier Title suit no. 146/67 contested between the same parties, similar issues were considered and rejected.

Learned counsel appearing on behalf of this civil revision petitioners have submitted before me that earlier Title suit no. 146/67 between the same parties considered the question of encroachment over plot nos. 691 belonging to the plaintiffs and the plea of encroachment over the said plot was rejected upto the High Court. In the subsequent Title suit no. 53/89 the question is not in regard to the removal of the encroachment from plot no. 691 but it is for declaration of easementary rights over the plot mentioned in Schedule 1 of the present plaint i.e. plot nos. 690, 688, 692, 693 belonging to the defendants. He further submitted that the two courts below while considering the question of res judicata did not take into account the pleadings filed in the earlier Title suit no. 146/67 as according to him there does not appear to be any discussion in regard to the pleadings of the parties in the judgment and order passed by the two courts below. In this connection learned counsel has relied upon the judgment of the Supreme Court in the case of V. R. Rajeshwari (Smt.) vs. T.C. Saravanabava reported in 2004(1) SCC 558 and has invited my attention to paragraphs 12 and 13 of the said judgment which in unequivocal term laid down that while considering the technical plea of res judicata, it is the duty of the persons who are raising the plea to produce all relevant documents including pleadings, issues and judgment passed in the earlier suit. In the case in hand from perusal of the judgment and order passed by the two courts below, it does not appear that the pleadings and issues of the earlier suit were filed and considered by the courts below when the present matter was being dealt. Even otherwise having perused the judgment and order passed by the two courts below, I am satisfied that earlier suit was filed for removal of encroachment from plot no. 691 belonging to the plaintiffs and the present suit has been filed for seeking easementary right over plot nos. 690, 688, 692, 693 belonging to the defendants. As such to my mind it does not appear that the relief prayed for in the present suit is barred by the principle of res judicata as the same was never gone into in the earlier title suit contested by the parties. I accordingly set aside the orders passed by the two courts below and direct that the trial court should proceed with the present Title suit no. 53/89 and to take the same to its logical conclusion in accordance with law. This civil revision application is allowed, however without cost.