IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Dated:10.12.2010 PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.501 OF 1999 Between: Bashu Miah (died) and others ..... APPELLANTS AND Munishwar ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.501 OF 1999 JUDGMENT: This appeal is by the plaintiff, whose suit for perpetual injunction was dismissed by both the Courts below. One of the defences raised by the respondent in the said suit is that the appellant/plaintiff had filed an earlier suit for declaration and injunction, O.S.No.1 of 1982, against the very same respondent, which covers the suit schedule property in this suit also and thereby the dismissal of the earlier suit operates as res judicata in the present suit. The trial Court had answered the said issue against the appellant/plaintiff and the appellate Court also had concurred with the said finding of the trial Court. Consequently, the lower appellate Court did not go into the merits of the matter. 2. In this appeal, Mr. B.V. Bakshi, the learned counsel for the appellants, has made detailed submissions on the aspect of res judicata as well as the merits. Mr. Ravinder Rao, learned counsel for the respondent, has reiterated the respondent's contention that the present suit is clearly barred by the principles of res judicata against the appellant. Even otherwise, on merits, the appellant/plaintiff has failed to establish possession on the date of suit and as such was rightly held not entitled to the decree of perpetual injunction as prayed for. 3. This Second Appeal was admitted on 16.06.1999 on the substantial question of law raised under ground Nos.2 to 4 of the memorandum of grounds, which reads as follows: “1) The rule of res judicata can be invoked only when the subject of the earlier suit between the same parties is one and same. In this case admittedly they are different. 2) The identity of the property does not depend on the measurements of dimensions of boundaries as mentioned in the documents. That while determining the identity of the property it is the boundaries which prevail. 3) That when once a fact is established it’s continuance is presumed unless the otherwise of its discontinuance is proved by positive evidence as envisaged under Section 114 of Indian Evidence Act.” 4. I have seen the original record of the suit and the appeal and particularly the pleadings of the parties and the crucial exhibited documents as well as the oral evidence and in particular, the plan appended to the plaint and the plan appended to the decree in O.S.No.1 of 1982. Learned counsel for the appellants has also placed copies of relevant documents and the oral evidence in a compilation. I have been taken through the relevant documents to impress upon the contention that the subject matter of earlier suit O.S.No.1 of 1982 and the present suit are entirely different, but have been wrongly understood by both the Courts below as one and the same and consequently, the principles of res judicata has been erroneously applied against the appellant/plaintiff. Learned counsel for the appellants has placed strong reliance upon the evidence of PW.1, which states as follows: "Chief Examination - ......the suit land is part of the land purchased from Chokya...... I purchased the suit land from one Chokya in the year 1964 under registered sale deed. I filed the said registered sale deed in the Court. The same is marked as Ex.A1. After I purchased the suit schedule land I erected two rooms with temporary shed." "Cross Examination - I have filed one suit against these defendants in O.S.No.1 of 1982 with respect to open land which was purchased from Arkoji to the extent of 38 x 28." 5. On the basis of the above statement of PW.1, learned counsel contends that the present suit land relates to the land purchased by the appellant/plaintiff from one Chokya, whereas the earlier suit related to the land purchased by the appellant/plaintiff from one Arkoji and consequently, since the subject matter of the earlier suit and the present suit being different, the bar of res judicata could not have been applied by both the Courts with respect to present suit of the appellant/plaintiff and he could not have been non-suited on that ground by the lower appellate Court. 6. Learned counsel for the respondent on the contrary tried to demonstrate that the aforesaid contention is factually not correct and both the Courts have in fact found that the suit land in both the suits is one and the same, inasmuch as the earlier suit covered a larger extent of land, whereas the present suit covers a smaller extent thereof. 7. In order to answer the substantial question of law as framed above, it would be necessary to notice plaint plan and compare the same with the plan appended to the decree in O.S.No.1 of 1982. The plan appended to the plaint shows the constructed portion of the appellant/plaintiff’s property in blue colour, which is to the north of suit schedule property shown in a different colour. The suit land is shown with dimensions of 24 feet X 34 feet, which is to the immediate south of the constructed portion. The plan appended to the decree in O.S.No.1 of 1982 (Ex.B4 herein) is also to the south of the yellow mark portion therein, which is the constructed portion in the present plaint plan. The dimension of 30 feet north to south is the same as in the plaint plan, but the said 30 feet is shown east to west. Further, 60 feet dimension is shown from east to west in Ex.B4, whereas in the plaint plan 24 feet is a dimension north to south. Though there is some discrepancy in the dimensions, there is no doubt that the property shown in both the plans and marked as suit schedule property in the respective suits is undoubtedly to the south of the constructed portion of the plaintiff. It is also evident that the land in question under Ex.B4 was a larger extent, whereas present suit schedule plan is with regard to a smaller extent. Further, it is the specific case of the appellant/plaintiff in para 5 of the plaint, which is extracted herein for convenience: "5. That in the year 1981 the plaintiff constructed some rooms and hut etc., using the whole portion purchased on 05.03.1975 (sale deed from Arkoji) and a portion of 30 feet/ 38 feet, out of the land purchased on 16.05.1964 (reference apparently is to the appellant’s purchase from Chokya on 16.05.1974) and kept open a portion of 30 feet long from east to west and 24 feet from north to south, behind my house towards south which is in the possession and enjoyment of plaintiff. This portion, the plaintiff wants to make cattle shed." 8. It would be evident from the above that even as per the appellant/plaintiff the entire land purchased from Arkoji was built upon in 1981 itself and the earlier suit O.S.No.1 of 1982 could not have been relating to the said land as it was neither an open land nor Ex.B4 supports said statement of PW.1 extracted above. Apparently, the subject matter of O.S.No.1 of 1982 was relating to the land purchased from Chokya and the present suit also relates to part of the land purchased from Chokya. 9. I am therefore, unable to see any error committed by the Courts below in holding that appellant's present suit is bared by principles of res judicata as it is clearly evident that the said earlier suit and the present suit relate to the very same property and the earlier suit for declaration of ownership and for injunction filed by the appellant/plaintiff having been dismissed, he cannot reagitate the very same question in the present suit. The main substantial question of law therefore is liable to be decided against the appellant. 10. In view of the above, it is not necessary to deal with the merits of the matter, but since it was substantially argued by the counsel for appellants the said aspect also can be briefly considered. It would be noticed from the evidence of PW.1 himself that even according to him the respondent/defendant has constructed a compound wall around the suit schedule land as per his statement as PW.1 in chief-examination itself. The respondent produced Ex.B7, permission granted to him for construction of compound wall by the Municipality, Bhainsa on 29.05.1979 together with sanction plan appended thereto. The present suit was filed on 22.04.1986 and that the appellant/plaintiff claims that the said permission was suspended by the Bhainsa Municipality under Ex.A5. The said Ex.A5 is dated 18.11.1988 i.e., almost nine years after the grant of permission under Ex.B1. Secondly, Ex.A5 is at least two years subsequent to the present suit and that by itself cannot be looked into to nullify the defendants case that he constructed compound wall after obtaining permission from the Municipality over the suit land as the land belongs to him. The relief of perpetual injunction therefore was rightly denied to the appellant/plaintiff as the trial Court was not satisfied with the evidence of his alleged possession over the suit schedule land as on the date of suit. 11. The learned counsel for the appellant also argued that the respondent's have not produced any documents establishing their claim over the suit schedule property, except Exs.B1 to B8, which relate to Municipal permission and a Certificate of Municipality and judgment and decree in O.S.No.1 of 1982. The said argument also is stated to be rejected as the burden is entirely on the appellant/plaintiff to establish his entitlement to the suit claim and the weakness of the respondent’s/defendant’s case cannot be taken advantage of by the appellant/plaintiff. The substantial questions of law therefore are liable to be answered against appellant and consequently, appeal is liable to be dismissed. 12. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. ____________________________ VILAS V. AFZULPURKAR, J 10.12.2010 MD THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.501 OF 1999 Dt. 10.12.2010