Anil Kumar Modi vs Tarsem Kumar Gupta

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4736-4737 OF 2011

ANIL KUMAR MODI & ORS. Appellant(s)

VERSUS

TARSEM KUMAR GUPTA Respondent(s)

JUDGMENT

B.R. GAVAI,J.

1. These appeals challenge the judgment and order

passed by the High Court of Punjab and Haryana at

Chandigarh dated 26.08.2009 affirming the order

passed by the Additional District Judge, Sangrur

dated 28.10.2006 whereby the Additional District

Judge had allowed the appeal of the respondent-

plaintiff and decreed the suit.

2. This is a third round of litigation between the

Signature Not Verifiedparties. Digitally signed by DEEPAK SINGH Date: 2022.09.22 15:11:48 IST Reason: 2

3. In the first round, the respondent-plaintiff

had filed a suit for injunction against the

Municipal Committee as well as the present

appellants-defendants for removing the latrine

blocks in the 10 feet passage between the houses of

the two parties. The said suit was dismissed holding

that, though the respondent-plaintiff had a right

to the said passage in view of sale deed dated

11.10.1954, he had no right to construct the toilet

and was directed to remove the latrine as there also

exists an easementary right of the present

appellants-defendants to open the windows and

ventilators in the said passage. In an appeal

carried against the same by the respondent-

plaintiff, the First Appellate Court held that the

respondent-plaintiff did not have exclusive right

for the said passage. It affirmed the order passed

by the trial Judge. Further, the Second Appeal

carried by the respondent-plaintiff was also

dismissed.

3

4. In the second round, the respondent-plaintiff

filed a suit against the appellants-defendants as

they were attempting to raise a construction and

open a door in the disputed passage.

5. During the pendency of the second suit, the

third suit, i.e., the present suit came to be filed

on 01.06.2000 seeking an order of injunction

restraining the present appellants-defendants from

removing the bricks raised by the respondent at

points A, B, C, D in the site plan. The appellants-

defendants also filed a counter claim praying for

decree for removal of the bricks from that passage.

6. During the pendency of the third suit, in view

of the statement made by the appellants-defendants

that, they will not open the door/gate and they will

only open windows in the common passage, the

respondent-plaintiff withdrew the second suit.

7. The Trial Court vide order dated 30.10.2004

dismissed the third suit and decreed the counter

claim of the appellants-defendants. Appeals were

filed by the respondent-plaintiff against the said 4

decree.

8. The First Appellate Court reversed the judgment

and order of the Trial Court and decreed the suit

of the respondent-plaintiff and dismissed the

counter claim.

9. In the Second Appeals preferred by the present

appellants-defendants, the High Court affirmed the

order of the First Appellate Court and dismissed the

said Second Appeals. Being aggrieved thereby, the

present appeals are filed.

10. Shri Ankit Goel, learned counsel appearing on

behalf of the appellants-defendants submits that the

First Appellate Court as well as High Court have

grossly erred in interfering with the judgment and

decree passed by the Trial Court. He submits that,

in the first round, there was a clear finding of the

First Appellate Court that the passage was a common

passage.

11. He further submitted that the said finding was

affirmed by the High Court in the Second Appeal and 5

as such, it operates as res judicata. It is also

submitted that in view of the said finding it was

not correct for the First Appellate Court and the

High Court to have taken a view contrary to the

finding of the Appellate Court in the first round.

He relies on the judgments of this Court in the

cases of R. Unnikrishnan & Anr. Vs. V.K. Mahanudevan

and Ors.1 and K. Arumuga Velaiah Vs. P.R. Ramasamy

& Anr.2 in that regard.

12. Shri Gagan Gupta, learned counsel appearing for

the respondent-plaintiff, on the contrary, submits

that the First Appellate Court as well as the High

Court on the perusal of the sale deed had rightly

come to a conclusion that the respondent-plaintiff

was entitled to exclusive possession of the said

passage and the only right that was available to the

present appellants-defendants was of opening windows

and ventilators in the said passage. He, therefore,

submits that no interference is warranted in the

present appeals.

1 (2014) 4 SCC 434 2 (2022) 3 SCC 757 6

13. We have perused all the judgments in the first

round as well as the third round.

14. In the first round, the only question that fell

for consideration before the High Court was as to

whether the respondent-plaintiff was entitled to

construct the latrine in the passage. The finding

of the Trial Court was that, though the respondent-

plaintiff was entitled to possession thereof, he

could not construct latrine in as much as it

adversely affected the easement rights of the

appellants-defendants.

15. The Appellate Court, therefore, in the first

round, ought to have restricted its findings to the

said issue. The question as to whether the

appellants-defendants were also entitled to any

right in the said passage did not fall for

consideration in the said proceedings. In that view

of the matter, there was no occasion for the

Appellate Court in the first round to have made any

observation with regard thereto.

16. In the present suit, the question as to whether 7

the respondent-plaintiff was entitled to exclusive

possession of the said passage fell for

consideration. The Trial Court dismissed the suit.

The First Appellate Court, on the basis of the

interpretation of the sale deed, came to a finding

that the respondent-plaintiff was entitled to

exclusive possession of the said passage and the

right of the appellants-defendants was limited only

to opening of windows and ventilators in the said

passage. The High Court in Second Appeals has

affirmed the said findings of the First Appellate

Court.

17. Though, Mr. Ankit Goel, learned counsel,

strenuously argued, relying on certain judgments of

this Court, that the findings in an earlier

proceeding could operate as res judicata in

subsequent proceedings, in our view, the said

judgments would not be applicable in the facts of

the present case.

18. The issue in the first suit was limited only

as to whether the respondent-plaintiff has a right 8

to construct the latrine in the passage. The issue

as to whether the respondent-plaintiff was

exclusively entitled to possession thereof did not

fall for consideration in the earlier round, whereas

in the third round, the said issue directly fell for

consideration.

19. In that view of the matter, we do not find any

reason to interfere with the concurrent orders of

the First Appellate Court and the High Court.

20. The appeals are dismissed in the above terms.

Pending applications, if any, stand disposed of. No

order as to costs.

….........................J (B.R. GAVAI)

...........................J (C.T. RAVIKUMAR)

New Delhi September 14, 2022