IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.623 of 2009. Date of Decision: 14th July, 2010. _______________________________________________________ Shri Inder Singh Kanwar ..Appellant. Versus Shri Shobha Ram ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant: Mr. N.K. Thakur, Advocate. For the respondent: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral). Records of the Courts below have been received and with the consent of learned Counsel for the parties the appeal has been heard and disposed of at the admission stage itself. 2. Appellant herein filed a suit for permanent prohibitory injunction with respect to khasra No.142, situate in Mouza Badua, Tehsil and District Shimla, but as a matter of fact this is his second round of litigation after having failed in the previous round of the same nature qua the suit land. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. Facts shorn of unnecessary details are thus. In the year 1991, the appellant and his mother had instituted a suit for injunction against the defendant /respondent alleging that they were owners in possession of the land comprised in khasra No.398/142, measuring 2 bighas 9 biswas and also land comprised in khasra No.396/142 adjoining to the road and that the respondent herein started digging over the suit land comprised in khasra No.398/142 without any right, title and interest. During the pendency of the suit he sought amendment that the respondent had constructed a house thereupon thus sought mandatory injunction for its demolition. In that suit, the respondent contended that he was the absolute owner in possession of khasra No.142, total measuring 19.8 bighas as having conferred the proprietary rights thereupon. Even he had paid the compensation to the landowners and also contended that the construction was raised over his own land and not on the land of the appellant as alleged. Earlier suit was dismissed on 24th August, 1999. The judgment is Ext.D.4. The appellant lost the case upto the High Court. Thereafter he tried his luck again by agitating the matter by filing the present suit afresh on 2nd November, 2002 with respect to the same land. - 3 - Though, an issue under Order 2 Rule of the Code of Civil Procedure was framed by the learned trial Court, but an application under Order 7 Rule 11 read with Order 2 Rule 2 of the Code of Civil Procedure was separately filed on 20th July, 2006, which was also dismissed on 12th June, 2007. The respondent offered strong resistance to the contentions raised by the appellant contending that the suit was not maintainable, inter alia pleaded that the suit is barred by the principle of res-judicata. 4. After complete trial, suit was dismissed with cost quantified at Rs.1,000/- to which he assailed in appeal. The learned District Judge took note of the previous litigation and after examining the evidence on record affirmed the judgment and decree of the learned trial Court that the suit was barred by principle of res-judicata and the appellant was also estopped to file the suit on account of own acts, conducts, deeds. Further that the suit was hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure and also there was no cause of action to file the suit and ultimately appeal was dismissed. 5. The concurrent findings of the Courts below have been assailed in the present second appeal contending that the suit khasra numbers, i.e., 397/142 - 4 - and 398/142 were carved out from old khasra No.142 and further that the principle of res-judicata was wrongly applied. 6. It is a fact that the controversy of the appellant was put at rest with respect to khasra No.142 in the earlier litigation. The appellant has tried to rack-up the issue again by filing the suit afresh on the ground that the suit khasras mentioned by him were carved out from old khasra No.142, but the fact remains that the controversy was set at rest in the previous litigation which has attained finality, therefore cannot re-agitate the matter. As such, I do not find any question of law muchless substantial question which now arises for determination in second appeal as proposed by him. Therefore, the appeal is dismissed in limine. CMP No.1069 of 2009. In view of dismissal of the appeal this application also stands dismissed and the interim order, if any, also stands vacated. July 14, 2010. (Surinder Singh), J. (rc)