Taskeen @APPELLANT@Hash Chandra Handa

This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:-

“It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and the record of the case may kindly be called

for and by an appropriate writ, order or direction, the impugned orders dated 12.07.2006 (Annex.10) passed by the trial court and 20.03.2010

(Annex.11) passed by the learned appellate court may kindly be quashed and set aside and the application for temporary injunction filed by the

respondent-plaintiff may kindly be dismissed with exemplary cost.

Any other appropriate writ, order or direction, which this Hon’ble Court may deem fit and appropriate, may also kindly be passed in favour of the

petitioner, in the interest of justice.”

Brief facts of this case, as noticed by this Court, are that there is a property situated at Chopasni Road, Jodhpur comprising of plots No.144, 145

and 146. In this regard, a patta was issued in the name of ancestors of the petitioner bearing patta No.123 dated 06.09.1931.

The property in question was partitioned in the year 1946 and Mohd. Sayeed s/o Late Shri Rahim Bux got certain properties under the partition

deed dated 01.01.1959. The said partition deed involved families of two brothers, whereby the petitioner and his ancestors got House No.3. House

No.2 was purchased by one Shri Anand Raj Thanvi being the property of other brother, namely, Abdul Gafar.

The bone of contention in the present case is a public way on the opening of the houses, description whereof has also been mentioned in the

aforementioned partition deed dated 01.01.1959.

The purchasers of Houses No.1, 2 and 3 sought public way in a different parameter, whereas the petitioner claimed that the right of way was

limited, strictly in accordance with the partition deed.

Shri Anand Raj Thanvi, the purchaser of House No.2, preferred a separate suit in respect of the right of way and the private respondent in the

present matter also preferred a suit separately.

Mr.M.R.Singhvi, learned Senior Counsel assisted by Mr.Bhavit Sharma, Advocate for the petitioner has submitted that the suit of Shri Anand Raj

Thanvi had completely decided the right of way and the statement of Chandra Handa-respondent No.1 was also recorded in that suit, and therefore,

the dispute has been finally adjudicated vide decree dated 16.08.2001.

Learned Senior Counsel for the petitioner states that the present suit is not maintainable, as the res judicata is directly operating, and in the first

appeal, the dispute regarding the aforementioned decree dated 16.08.2001 is still pending before this Hon’ble Court.

Learned Senior Counsel for the petitioner further stated that no easementary right was vested in the respondent No.1, and if at all, she had any

right, the same at best be compared with Houses No.1 and 2, for which the adjudication had already taken place in the earlier suit preferred by Shri

Anand Raj Thanvi, wherein the decree was passed on 16.08.2001.

Learned Senior Counsel for the petitioner has also stated that the temporary injunction under Order 39 Rules 1 and 2 CPC, which has been

granted on 12.07.2006 by the learned trial court in the suit bearing Civil Misc. Case No.33/2006 preferred by respondent No.1 is contrary to law.

Learned Senior Counsel for the petitioner also claimed that vide the appellate order dated 20.03.2010 in Civil Misc. Appeal (Order) No.55/2006,

which partly modified the order dated 12.07.2006 passed by the learned trial court to the extent that in respect of the way shown by the Commissioner

in his report dated 17.07.2006 on the eastern side of the house of the respondent/plaintiff, status quo was ordered to be maintained.

Learned Senior Counsel for the petitioner has drawn the attention of this Court towards the partition deed dated 01.01.1959 as well as the

statement rendered by Shri Anand Raj Thanvi, and has submitted that from these documents, it is amply clear that the dispute had already been

adjudicated by the decree passed by the learned court below on an earlier occasion on 16.08.2001.

On the other hand, Mr.B.M.Bhojak, learned counsel for the respondent has however submitted that the temporary injunction application has gone

through two consecutive orders of the learned courts below and the order modified by the learned appellate court almost upholds the order passed by

the original court. Learned counsel for the respondent therefore justifies the order dated 12.07.2006 of the learned trial court and the order dated

20.03.2010 passed by the learned appellate court.

After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that any claim of the res

judicata or res subjudice requires the parties to be same, and merely because the respondent no.1 has deposed in the earlier decree, it would not mean

that the res judicata shall apply.

The two consecutive orders passed by the learned courts below granting temporary injunction are in tandem with each other, and therefore, are

well reasoned orders.

The partition deed dated 01.01.1959 also reflects that the property that was adjudicated in the earlier suit is different from the property belonging

to the present respondent/plaintiff.

This Court finds that in such circumstances, the applicability of res judicata cannot be a ground for dismissing the temporary injunction application.

In light of the aforesaid observations, no interference is called for in the present writ petition and the same is accordingly dismissed.