IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1669 of 2007 Vishwanath Prasad Chaurasia @ Versus Nand Kishore Das Gaud @ Nand K ---------------------------------- ORDER 08. 16.08.2011 1. Heard the learned counsel Mr. Ashok Kumar on behalf of the petitioner. Inspite of service of notice on the opposite party nobody appears at the time of hearing in admission matter. It appears that by terms of order dated 14.3.2010 notices were issued in admission matter and further proceedings in Title Suit No. 169 of 2004 pending in the Court of Munsif, Aurangabad has been stayed. 2. This revision application has been filed by the defendant-petitioner against the order dated 9.5.2007 passed by Munsif, Aurangabad in Title Suit No. 169 of 2004, whereby the learned court below held that the suit is not barred by res judicata. 3. The plaintiff-opposite party filed the present suit being Title Suit No. 169 of 2004 praying for declaration of title and confirmation of possession of the plaintiff on the suit land comprised within plot Nos. 662 and 558 as mentioned in detail in Schedule 1 of the plaint and also prayed for permanent injunction against the defendant-petitioner. 2 4. The defendant-petitioner appeared and filed written statement and thereafter filed an application for deciding the question of res judicata as preliminary issue under Order 14 Rule 2 of the code of Civil Procedure. According to the defendant-petitioner the Title Suit No. 310 of 1970 between the same party concerning the same subject matter of present suit where same issues were involved has already been decided. In that title suit of the year 1970 the present plaintiff was defendant who had filed written statement and suit was filed by father of present defendant petitioner namely Moti Ram. However, Title suit No. 310 of 1970 was decreed ex parte in favour of the father of the defendant petitioner. 5. After considering the facts and circumstances of the case and the issue involved in both the cases the learned court below found that the present suit is not barred under Section 11 of the Code of Civil Procedure. 6. The learned counsel for the petitioner Mr. Ashok Kumar submitted that since the issues in the earlier suit are same in the present suit and the parties are also same and the subject is also same the learned court below wrongly decided that the res judicata is not applicable. According to the learned counsel in the present suit only another plot No. 558 has been added which was not the subject matter in the earlier suit and 3 the petitioner has no concern with the said plot No. 558. 7. It appears that subsequently, the order dated 28.4.1973 passed in the earlier suit has been filed as Annexure 1. From perusal of the said order it appears that in that case the suit was filed for declaration that the defendant has got no right to put obstruction in the free flow of the drain water of the plaintiff’s house standing over western portion of plot No. 662 which passes just west of plot No. 558 and also that the obstruction so put by the defendant is fit to be removed and the defendant be ordered to remove the brick wall and to clear the filled up drain, failing which the same be done through the court. It further appears that the defendant in that case did not contest and the learned court below on the basis of order passed in 147 Cr.P.C. and the witness PW1 i.e. the plaintiff ordered that the suit be decreed and it was declared that the defendant has got no right to construct brick wall over the drain through which the water of the plaintiff’s house flows and had got no right to fill up the said drain. The defendant has also got no right to construct any room adjacent west of house of the plaintiff over plot No. 662 which will obstruct the light and passing through windows in the western wall of the plaintiff’s house. 8. From perusal of the order passed in Title Suit No. 310 of1970 it appears that the case was not for 4 declaration of title or possession. It appears that there was only obstruction by making construction of wall by the defendant on the drain. It does not appear that the parties were fighting with regard to their title and possession with respect to any property nor there is any finding nor any issue was framed in that suit. We have seen above that in the present suit the plaintiff has prayed for declaration of title and confirmation of possession over the two plots. 9. Section 11 of the Code of Civil Procedure reads as follows : “Section 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 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.” 10. As stated above in the earlier suit no issue was framed nor any decision was given by the court regarding title or possession over the subject matter of the suit therefore, it cannot be said that the suit or issue which involved in the present suit was directly and substantially in issue in the former suit and the said suit 5 or any issue has been heard and finally decided by the former court. It is well settled that where issues in both the proceedings were not the same nor it has been decided finally the principles of res judicta as provided under Section 11 of the Code of Civil Procedure is not applicable. I therefore, find that the learned court below has rightly decided the issue in favour of the plaintiff respondent. 11. In view of the above facts and circumstances of the case, I find no reason to interfere with the impugned order. Accordingly, this revision application is dismissed. Any interim order passed by this Court is vacated. S.S. A.F.R. (Mungeshwar Sahoo,J.)