Delhi District Court
Cs. No. Scj 507/2018 Usha Rani vs Babu Lal And Ans. on 25 February, 2023
CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
IN THE COURT OF MS. NEETU NAGAR, CIVIL JUDGE,
SOUTH DISTRICT, SAKET COURT, DELHI
Case No. : CS SCJ 507/2018
CNR No. : DLST03-000853/2018
IN THE MATTER OF :
Smt. Usha Rani
Wife of Shri. Ramdhan
Residing at B-11-B, Fourth Floor,
Sanwal Nagar,
New Delhi-110049.
............... Plaintiff
Versus
1. Shri. Babu Lal,
Son of Late Shiv Lal.
2. Smt. Rajo
Wife of Babu Lal
Both residing at B-11-B, Ground Floor,
Sanwal Nagar,
New Delhi-110049.
............Defendants
***
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION.
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Date of Institution of suit : 28.05.2018
Date of Reserving of Judgment : 25.02.2023
Date of Pronouncement of Judgment : 25.02.2023
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Digitally signed
by NEETU
JUDGMENT
NEETU NAGAR Date:
NAGAR 2023.02.25 16:44:08 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 1 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff seeking the relief of perpetual mandatory injunction as prayed for.
PLAINT
2. Briefly, the case of the plaintiff is that the defendant no. 1 is the absolute owner of the property bearing no. B-11-B, admeasuring 34 square yards situated at Sanwal Nagar, New Delhi in the revenue estate Raipur Khurd (hereinafter referred to as the 'said plot') which plot forms part of a colony regularised by MCD/DDA vide a resolution no.52 dated May 20, 1981 comprising of ground, first, second and third floor, (hereinafter referred to as the "suit property'). The defendants occupy the ground floor and third floor of the said property.
3. Vide registered Sale Deed dated November 13, 2009, the defendant no.1 through his constituted General Attorney (defendant no.2 herein), conveyed and transferred all rights and title in respect of the terrace on the third floor of the said property, along-with proportionate undivided, indivisible and impartible ownership rights in the land underneath, the common staircase and all other common facilities/amenities in the suit/property to the plaintiff, for a total consideration of Rs. 1,56,000/- (Rupees One Lakh Fifty Six Thousand Only).
Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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4. Thereafter, the plaintiff constructed her residence on the said terrace, as a result of which there are four floors in the said property with an open terrace above the fourth floor constructed by the plaintiff. The access to the terrace is by a steel staircase placed at the entrance of the residence/house of the plaintiff which is used by the residents of the suit property to go up to the mumty and terrace which is used as a common area.
5. The plaintiff, since 2009 has been continuously and uninterruptedly using the terrace above the fourth floor, constructed by her for utilities such as storage of water tanks, drying clothes etc. The plaintiff has one water tank installed on the mumty and one water tank installed on the terrace.
6. Around June 2015, the defendants started picking up unnecessary and baseless fights, thus harassing the plaintiff and her family members and hurling abuses and expletives at them over the use of the terrace of the fourth floor.
7. On September 14, 2015, the defendants disconnected the water supply to the water tanks of the plaintiff. The defendants repeatedly threatened the plaintiff to disconnect electricity supply to the plaintiff's residence.
8. The husband of the plaintiff vide First Information Report (FIR) dated September 18, 2015 inter-alia, informed the Digitally signed NEETU by NEETU NAGAR NAGAR 16:44:27 Date: 2023.02.25 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 3 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
Officer-in-Charge, Hauz Khas, Police Station about the aforesaid facts requesting appropriate action to be taken against the defendants who visited the said property. With the intervention of the Officer-In-Incharge, the defendant restored water supply to the water tanks of the plaintiff. However, the defendants continued to harass and trouble the plaintiff.
9. On 16.09.2015, the defendants filed a suit being CS 378/15 (Babu Lal & Ors v. Smt. Usha), subsequently renumbered as CS 51498/16, inter-alia, seeking a decree of permanent injunction restraining the defendant (plaintiff herein) or any person claiming through her from dispossessing and preventing the plaintiffs (defendants herein) from using the terrace of the 4th Floor of the property no. B-11-B, Sanwal Nagar, New Delhi - 110049 and/or other reliefs. The application of the defendant under Order XXXIX Rule 1 and 2 inter-alia, seeking an ad- interim injunction restraining the defendant (plaintiff herein) from preventing the plaintiffs (defendants herein) from removing the debris and from free access to the terrace floor of the 4th floor, was allowed.
10.It is further submitted that the plaintiff and her family were away to their hometown from 15.02.2018 to 26.02.2018. On 26.02.2018, when the plaintiff and her family returned to their house, they were shocked to see that the entire terrace had Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:44:34 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 4 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
been enclosed and locked by the defendants. The water tanks belonging to the plaintiff installed on the terrace have been enclosed therein. There is no access to the terrace since. The plaintiff and her husband on 28.02.2018 and thereafter, repeatedly requested the defendants to unlock the terrace to allow them to use the terrace of the fourth floor, however to no avail.
11.It is submitted next that the Sale Deed stipulates that the plaintiff is entitled to use, enjoy and utilise the purchased property in any manner without any interruption, disturbance and objection by the defendants. The plaintiff has an easementary right to use the terrace of the fourth floor to effectively/beneficially use, enjoy and utilise the fourth floor. The use of the terrace of the fourth floor is of necessity. Such a right is apparent, continuous and necessary for enjoyment of the fourth floor purchased by the plaintiff. There is no other space/area in the said property for utilities such as to store water tanks, dry clothes etc. The plaintiff at no point of time accessed the terrace in a manner that is onerous to the defendant and the same is a common area.
12.Hence, the present suit for the relief of perpetual mandatory injunction restraining the defendants and/or their agents or Digitally signed NEETU by NEETU NAGAR NAGAR Date:
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servants or men or assigns from interfering with the plaintiff's right to use the terrace of the fourth floor.
WRITTEN STATEMENT
13.Written Statement was filed by defendants wherein it was submitted that the subject matter in issue in the present suit is directly and substantially in issue in the previously instituted suit bearing no CS 378/2015(old) 51498/16(New) titled as Sh. Babu Lal & Another-versus- Smt Usha. It is further submitted that both the suits are for permanent and mandatory injunction with regard to the terrace floor of the suit property. The previously instituted suit was filed by Shri Babu Lal and another defendant herein, against Smt. Usha plaintiff herein in the present suit.
14.The present suit is not maintainable as the interim orders vide orders dated 15.3.2016 under Order 39 rule 1 and 2 CPC has been passed by the court of Shri Sushil Anuj Tyagi holding that plaintiffs Shri Babu Lal & Smt. Rajo (defendants in the present suit) have the right to free access to the terrace of the fourth floor. Further, the plaintiff herein has been restrained from interfering in the use, occupation of the terrace floor of the suit property. The plaintiff has no right, title or interest on the top terrace floor and has not paid the appropriate court fees since the plaintiff is not in possession of the terrace floor Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:44:48 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 6 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
of the suit property. The terrace of the 3rd floor was sold out to the plaintiff on low consideration for Rs. 1,56,000/- as it was agreed upon that the terrace of 3rd floor will remain in occupation and under the ownership of the defendants(herein). The sale was confirmed through a registered sale-deed dated 13/10/2009 and as per clause-9 of the top terrace floor right was kept by the defendants for their own use and occupation.
15.It has been further submitted that the suit of plaintiff is not maintainable as the easement right is not available in Delhi to the parties. Rest of the contentions of the plaint have been denied in toto and it has been prayed for dismissal of the present suit.
REJOINDER/REPLICATION
16.Replication was filed on behalf of plaintiff to the written statement filed by the defendant wherein the averments made in the plaint were reiterated and the contents raised in written statement were denied. It has been submitted that the matter in issue in both the suits is different. The suit of the defendants is substantially different from the present suit. Adjudication of either of the suits would not have a bearing on the other suit.
ISSUES Digitally signed NEETU by NEETU NAGAR NAGAR 16:44:55 Date: 2023.02.25 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 7 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
17.On the basis of pleadings of parties, following issues were framed:
1. Whether the present suit is liable to stayed under Section 10 CPC?
2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for?OPP
3. Relief.
18. Further vide order dated 04.04.2022, the issue no. 1 was reframed as follows:
"1. Issue no. 1: Whether the present suit is barred by principle of res judicata? Onus on the parties."
19. Arguments were heard on the preliminary issue pertaining to the plea of res judicata.
OBSERVATION AND REASONING
20. Before analysing the issues in hand, it is necessary to visit the jurisprudence on res judicata. Section 11 of the Code of Civil Procedure, 1908 (in short "CPC") states as follows:
"11. Res Judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
[...] Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .
[...] Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
21. In order to attract the principles of res judicata, the following ingredients must be fulfilled:
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(i) The matter must have been directly and substantially in issue in the former suit;
(ii) The matter must be heard and finally decided by the Court in the former suit;
(iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title; and
(iv) The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised.
22. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd.
Hanifa (dead) by L.Rs decided on 22nd March, 1976 (1976 AIR 1569) it was observed that before a plea of res judicata can be given effect, the following conditions must be proved:
"7... "(1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction." The Court noted that "the best method" to decide the question of res judicata is first to determine the case of the parties as they are put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:45:18 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 10 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
judicata."
23. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same.
24. Further, Order 14 Rule 2 CPC states that if questions of fact and law arise in the same suit, the court can dispose the case on the question of law alone if it relates to the following:
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force.
25. It is relevant also to quote the observations in case law titled as Sushil Kumar Mehta v. Gobind Ram Bohra 1990 (1) SCC 193 wherein Hon'ble Supreme Court held that the principle of res judicata cannot be fit into the pigeon hole of 'mixed question of law and facts' in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if Digitally signed NEETU by NEETU NAGAR NAGAR Date:
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there has been any material alteration in the facts and law applicable. It was observed as follows:
"26. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary Digitally signed issue. In certain cases, particularly when a mixed question NEETU by NEETU NAGAR NAGAR Date:
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of law or fact is raised, the issue should await a full- fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis."
26. Further, the locus classicus on the point of determining if an issue was 'directly and substantially' decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs.v. Musa Dadabhai Ummer AIR 2000 SC 1238. During the course of the judgment, the Hon'ble Apex Court analysed the expression "directly and substantially in issue"
in Section 11 and laid down the twin test of essentiality and necessity:
"12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be resjudicata in a subsequent proceeding. Judicial Digitally signed by NEETU decisions have however held that if a matter was only NEETU NAGAR Date:
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"collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue."
27. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). Further, another principle of caution has been referred to by Mulla (p.105). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:45:45 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 14 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
directly and substantially in issue.
28. In a more recent decision in Nand Ram (Dead) Through Legal Representatives v. Jagdish Prasad (Dead) Through Legal Representatives on 19th March, 2020, a Bench of two judges reiterated the principle that if a matter has only collaterally or in an auxiliary manner been in issue or decided in an earlier proceeding, the finding would not ordinarily be res judicata in a later proceeding where the matter is directly and substantially in issue. Justice Hemant Gupta (writing for a two judge bench) noted that the material test to be applied is whether the adjudication of the issue is material and essential for the decision.
29. In view of the authorities cited above, the twin test that is used for the identification of whether an issue has been conclusively decided in the previous suit is:
A. Whether the adjudication of the issue was 'necessary' for deciding on the principle issue ('the necessity test'); and B. Whether the judgment in the suit is based upon the decision on that issue ('the essentiality test').
30. Having discussed the legal position regarding principle of res judicata, let us proceed to discuss whether the same is attracted in the present facts and circumstances. In the present case, determination of the components of res Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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judicata turns on the pleadings and judgement in the earlier suit which has been brought on record and not disputed between the parties to suit. All the documents and material necessary to decide the issue is before this court.
31. I will now refer to the proceedings in the earlier suit to decide if the bar of res judicata would be applicable in view of the judgement in the previous suit. The earlier suit bearing number CS SCJ 51498/15 was filed for seeking for the relief of permanent injunction filed by plaintiff therein Sh. Babu Lal and Smt Rajo against defendant Smt. Usha, as follows:
"Pass a decree for permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, her agents, associates, assignees, family members, relatives etc or any other person claiming through her from dispossessing and preventing the plaintiff from the terrace of 4 th floor of property bearing no. B-11-B, Sanwal Nagar, New Delhi, as shown in red colour in the site plan attached herewith and not to cause any hindrance/obstructions in the free passage fro the plaintiff and their family members, assignees etc."
32. Hence, it is amply clear that the parties in the instant proceedings are the same as the first suit. It is now to be analysed if the substantive issues in the instant suit was Digitally signed NEETU NAGAR by NEETU NAGAR 16:46:01 Date: 2023.02.25 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 16 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
conclusively decided in the first suit. Before deciding the same, it is required to discuss the pleadings, issues and the findings in first suit decided between the parties therein.
PLEADINGS OF THE FIRST SUIT
33. It is stated in the plaint by the plaintiffs therein that the plaintiff no.1 Sh. Babu Lal being the owner of Ground and Third Floor of property bearing no.B-11- , Sanwal Nagar, New Delhi-110049, sold out the terrace of Third Floor through plaintiff no.2 Smt.Rajo being General Attorney of plaintiff no.1 vide sale deed dated 13.11.2009 registered at the offfice of Sub-Registrar V, New Delhi and handed over the peaceful vacant possession to defendant at the site. After purchasing open vacant terrace, the defendant constructed her 4th floor and is residing therein with her family. The terrace of top floor (forth floor) of property bearing no. B-11-B, Sanwal Nagar, New Delhi-110049 hereinafter shall be referred as" suit property".
34. It is further stated that the defendant does not have any right over the terrace of the Top Floor as the same is under the ownership of the plaintiffs and cannot claim any right, title or interest of the top terrace.
35. In the written statement filed by defendant therein (present plaintiff), the defendant took the following defence:-
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It is stated that the plaintiffs sold the rights on the terrace of third floor to the defendant. The owners of the floors in the property have a proportionate, undivided and indivisible right in the land and in the common area of the property. The parties are joint owner of the land and common area. The consideration of Rs. 1,56,000/- was paid and the Sale Deed was registered on 13.10.2009. The plaintiffs mala fidely constructed the alleged barasati on the terrace of 4th floor to gain exclusive possession and control of the terrace to the exclusion of the defendant. It is for common use of the owners of the floors in the property. The terrace has been used by the defendant since 2009. The plaintiffs obstructed the defendant in accessing the terrace. The terrace of 4th floor is a common area which cannot be in the exclusive use and occupation of the plaintiffs. The defendant has a right to use and access the terrace of the fourth floor.
ISSUES OF THE FIRST SUIT
36. On the basis of pleadings of parties, following issues were framed vide order dated 30.04.2019 :-
(a)Whether the plaintiffs are in settled possession of the suit property viz. terrace of fourth floor of property no. B-11-B, Sanwal Nagar, New Delhi-49, as shown in the red colour in the site plan filed by the plaintiffs? OPP Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:46:15 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 18 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
(b)Whether on 09.09.2015, the defendant had interfered in the settled possession of the suit property, by the plaintiffs? OPP
(c)Whether the defendant has right to use the suit property? OPD
(d)Whether the plaintiffs are entitled to relief of permanent prohibitory injunction, as prayed for? OPP
37. In the course of the judgement, the trial judge discussed the evidence adduced by both the parties and came to the finding that both DW1 and DW2 in the cross-examination have admitted that the terrace is covered by iron fence and it is in the possession of the plaintiffs. The evidence led by the plaintiff and admission of both defendant witnesses certainty proves that the plaintiff is in settled possession of terrace of fourth floor of the said property. Issues no. 1 and 2 were decided in favour of the plaintiff and against the defendants. Regarding issue no. 3, it is important to reproduce the observation of learned trial court which is as follows:
" 17. Ld. Counsel for defendant argued that the defendant has right to use the common area / facilities in the suit property as per clause no.8 of sale deed Ex.DW I/X. Ld. Counsel for defendant has relied upon the judgment passed by Hon'ble High Court of Delhi in the case of Vinay Kathuria Vs Captain Rajesh Kumar Mehta & Ors, Digitally signed NEETU NAGAR by NEETU NAGAR Date: 2023.02.25 16:46:22 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 19 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
2010 SCC online DEL 2532.
18.As per the clause no.9 of sale deed Ex.DW1/X, the ownership right of the terrace of fourth floor/top floor were given to vendor/plaintiff. The defendant was given only the proportionate right in the land underneath alongwith the owner of the building. Defendant has no right or interest in the suit property.
19.The facts of case of Vinay Kathuria Vs Captain Rajesh Kumar Mehta & Ors (supra) are different from the facts of the present case as in the present case, the plaintiffs are exclusive owner of terrace of fourth floor suit property as per the clause no.9 of sale deedEx.DW1/X. The defendant has not right or interest in the terrace of fourth floor.
20.It has not been mentioned in the sale deed Ex.DW1/X that the terrace of top floor has any common area/facility which the defendant is entitled to enjoy as per clause no.8 of the said sale deed. Therefore, it is proved that the defendant has no right to use the suit property i.e. terrace of fourth/ top floor. Hence, the issue is decided in favour of plaintiffs and against the defendants."
38. Lastly, regarding the issue, whether the plaintiffs are entitled to relief of permanent prohibitory injunction, as prayed for, it has been observed that the defendant is trying to gain the Digitally signed by NEETU NEETU NAGAR Date:
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possession of the suit property by hook or crook and it cannot be said that the defendant has only interfered in the peaceful possession of the plaintiff with regard to suit property. Therefore, the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for."
39. Accordingly, the defendant, her agents, associates, family members and relatives are restrained from dispossessing the plaintiffs from the terrace of fourth floor of property bearing no. B-11-B, Sanwal Nagar, New Delhi as shown in red colour in the site plan and also restrained to cause any hindrance / obstruction in the free passage for the plaintiffs and their family to the terrace of fourth floor of property bearing no. B- 11-B, Sanwal Nagar, New Delhi.
40. Hence, from the pleadings of the defendant (present plaintiff) in the earlier suit, it is amply clear that she claimed the right in the terrace stating the same to be the common area of the suit property. Meaning thereby that the right of user of the defendants therein (present plaintiff) was in fact directly and substantially in issue in the earlier suit, which is so in the present suit as well and regarding which categorical finding has been made by the first trial court. It was not the case of the defendant therein as well that she is owner of the terrace of fourth floor and had alleged that she had a right to use and Digitally signed NEETU by NEETU NAGAR NAGAR Date: 2023.02.25 16:46:37 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 21 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
access the same having common rights.
41. Hence, the question of title regarding the terrace on the fourth floor as well as right to use the same by the present plaintiff were directly and substantially in issue in the earlier suit and the findings on the said issues were necessary for the principal issue regarding relief for injunction as prayed therein. Since the same has been decided conclusively, the present suit is barred by res judicata being a pure question of law in the present facts and circumstances.
42. It was next argued by the learned counsel of plaintiff that the earlier suit was not based on easement. To my mind, the plea of easement could have been raised by the present plaintiff therein as well. It is not that the right of the plaintiff has matured due to lapse of time into easementary rights by the time of institution of the present suit. The earlier suit was instituted 17.09.2015, whereas the present suit has been instituted on 28.05.2018 hence, it cannot be stated that the easement rights has accrued to the present plaintiff by way of prescription. The ground of easement by necessity was in fact inclusive in the ground raised by the present plaintiff when it earlier alleged that the rights qua the fourth floor is common. Admittedly, the present plaintiff had no title in the fourth floor then it seems that common rights were in fact being sought on Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2023.02.25 16:46:46 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 22 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
the basis of easement by necessity itself though strictly not using the words "easement by necessity" therein in the plaint filed in the first suit. For the sake of arguments, even if it is assumed that the common rights in the terrace and rights by way of easement of necessity therein are different then in that case as well the present suit of the plaintiff would be barred by principle of constructive res judicata as the ground of easement by necessity was available to the present plaintiff in the earlier suit as well but was not raised. In that scenario as well, the present suit is also barred by principle of constructive res judicata.
43. Even otherwise, the present suit for perpetual and mandatory injunction on the basis of easementary right is not maintainable. Reliance can be placed on observation of Hon'ble High Court of Karnataka in Misc First Appeal No.5550 of 2019 (CPC) in N. Venugopal Reddy Vs. Ms Ondot Corpopate Services Pvt. Ltd. & Anr., being reproduced as follows:-
"3. If according to the plaintiff, there exist a road on which he can impose right of usage, he must establish right of easement. A suit for bare injunction, without seeking declaration with respect to easement right is not maintainable in the facts and circumstances pleaded."Digitally signed
NEETU by NEETU NAGAR NAGAR Date:
2023.02.25 16:46:54 +0530 (Neetu Nagar), Civil Judge-02(South) Saket Courts, New Delhi 25.02.2023 (Page 23 of 24) CS. No. SCJ 507/2018 USHA RANI Vs BABU LAL AND ANS.
44. Accordingly, the preliminary issue whether the present suit is barred by principle of res judicata is decided in favour of the defendants and against the plaintiff.
45. As a result of the above discussion, the present suit filed by the plaintiff stands dismissed with costs.
46. File be consigned to record room after due compliance.
Digitally signed by NEETU NEETU NAGAR
NAGAR Date:
2023.02.25
16:47:01 +0530
Announced in the open court (Neetu Nagar)
on 25.02.2023 Civil Judge-02(South)
(This judgment contains 24 pages Saket Courts, New Delhi
and each page has been signed by me.) 25.02.2023
(Neetu Nagar),
Civil Judge-02(South)
Saket Courts, New Delhi
25.02.2023
(Page 24 of 24)