RSA No.749 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.749 of 2010 (O&M) Date of Decision: 2.7.2010 Gursharan Singh .... Appellant. Versus Mohinder Singh ... Respondent. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Malkeet Singh, Advocate for the appellant. RAKESH KUMAR JAIN J. The plaintiff is in second appeal against the judgment and decree of both the Courts below by which his suit for declaration has been dismissed on the ground that the same is barred by principle of res judicata. The learned first Appellate Court recorded the following findings: “Indubitably, the judgment and decree, copies Ex.D3 and Ex.D4, were appealed against by the appellant before the then Additional District Judge, Ludhiana and the latter vide judgment, copy Ex.D6 and decree copy Ex.D7, dismissed the appeal on 3.9.2001. Instead of filing regular second appeal, the appellant again came up with this second suit on the same cause of action, who, on the contrary, should have filed regular second appeal against the judgments and decrees ibid before the Hon'ble High Court, instead of filing the instant suit, which must be described as barred by principle of res judicata. So, in these judgments and decrees ibid, the polemic RSA No.749 of 2010 (O&M) -2- regarding suit passage stood finally adjudicated to the effect that the same is owned by Mohinder Singh respondent, herein, and is not, thus, public passage for use of all and sundry, including the appellant. So, this polemic has been unnecessary raised by the appellant in this suit and in view of the adverse findings against him, it cannot be held that the suit passage was given to the appellant by the respondent at the time of sale of land, mentioned in sale deed Ex.PR dated 23.1.1991. There is no gainsaying about the land mentioned in the sale deed Ex.PR dated 23.1.1991, vesting in the appellant, but the dispute is only regarding the passage, which could be held to be ownership of the appellant, only, if it had been held so in judgment and decree, copies Ex.D3 and Ex.D4 respectively and judgment and decree of Appellate Court, copies Ex.D6 and Ex.D7 respectively. So, the learned trial Court rightly concluded that the appellant is neither the owner nor has right of user in the suit passage nor the same vests in him.” Learned counsel for the appellant has argued that the earlier suit was for permanent injunction, whereas the present suit is for declaration, therefore, the learned Court below has erred in dismissing the suit on the ground of principle of res judicata. I have heard learned counsel for the appellant and have perused the record with his assistance. Matter in issue in the former suit and the present suit are the same. The plaintiff lost the earlier suit, copies of which are Ex.P3 and Ex.P4 and also in appeal, copies of which are Ex.D6 and Ex.D7, therefore, the present suit is totally misconceived and the same has been rightly dismissed on the ground of res judicata. Thus, I do not find any error in the judgment and decree of both RSA No.749 of 2010 (O&M) -3- the Courts below and also the reasoning adopted by the first Appellate Court in this regard. In view of the above discussion, I do not find any substantial question of law involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 and the same is hereby dismissed but without any order as to costs. (RAKESH KUMAR JAIN) 2.7.2010 JUDGE Meenu