The main legal point established in the judgment is the application of res-judicata in a property dispute, where the court held that once the ownership issue is decided against the appellant/plaintiff, the appellant/plaintiff is not entitled to the reliefs claimed in the suit.

VALMIKI J. MEHTA, J.

CM No. 5609/2017 (delay in filing of 16 days)

For the reasons stated in the application, delay in filing is condoned, subject to just exceptions.

CM stands disposed of.

RFA No. 156/2017 & CM No. 5608/2017 (stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 16.8.2016 by which the trial court has rejected the suit as barred by res-judicata by applying Order VII Rule 11 CPC.

2. The facts of the case are that the appellant/plaintiff claims that his father Sh. Hari Singh was the owner of 275 sq. yds in Khasra No. 59/25 (0-15) situated in extended Lal Dora Abadi of Village Malik Pur, Delhi and that after the death of Sh. Hari Singh by virtue of partition between the four sons of late Sh. Hari Singh, appellant/plaintiff became owner of 93 sq. yds out of 275 sq. yds which is shown in blue colour in the site plan along with the plaint. Appellant/plaintiff claims that after partition and receiving 93 sq. yds the land was mutated in his name on 24.3.1998 and all the family members have accepted the ownership and possession of the appellant/plaintiff. The subject suit for declaration, partition, possession and permanent injunction was accordingly filed and reliefs prayed with respect to the claim of the appellant/plaintiff to 93 sq. yds of land out of 275 sq. yds of land forming part of Khasra No. 59/25 (015) situated in extended Lal Dora Abadi of Village Malik Pur, Delhi.

3. Respondents/defendants filed an application under Order VII Rule 11 CPC and pleaded that identical issue of ownership of the appellant/plaintiff of the suit property was decided in the earlier suit for injunction bearing no. 573/2011 filed by the appellant/plaintiff and the claim of the appellant/plaintiff to ownership of the suit property was rejected by a Judgment and Decree dated 8.12.2015 passed by a Civil Judge in Suit No. 573/2011.

4. Trial court has held that the issue with respect to ownership was very much directly and substantial in issue between the parties in the earlier suit and this issue was decided against the appellant/plaintiff in the earlier Judgment and Decree dated 8.12.2015. In the Judgment and Decree dated 8.12.2015 it is seen that while deciding issue no. 3 it was held that appellant/plaintiff is not the owner of the suit property inasmuch as in fact partition of all the properties of the family had taken place in the year 1986 and appellant/plaintiff with respect to his share had got a property being Plot No. 54, Gali No. 1, New Basti Bakner, Near Railway Crossing, Narela, Delhi of 260 sq. yds. Accordingly, the judgment and decree dated 8.12.2015 dismissed the suit for injunction filed by the appellant/plaintiff. The relevant paragraphs of the Judgment dated 8.12.2015 deciding the issue of ownership claim of the appellant/plaintiff of 93 sq. yds against the appellant/plaintiff are paras 14 to 24 and these paras read as under:-

“ISSUE NO. 3: Whether the plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP.

14. Onus to prove the aforesaid issue was upon the plaintiff. It is submitted by counsel for the plaintiff that plaintiff has been able to discharge the aforesaid onus in as much as, according to him, admittedly the suit property was being owned by father of the plaintiff and the defendants and during the life time of father of plaintiff and defendants, the suit property was divided between the parties and during partition, the property shown in red colour in the site plan has fallen to the share of plaintiff who is in continuous and uninterrupted possession of the same till date. Thus, according to him, the defendants are liable to be restrained from interfering with his enjoyment/user of the suit property. Ld. counsel for the plaintiff has relied upon following judgments in support of his submissions:

(i) Arjan Singh Vs. The Financial Commissioner, 2001 (1) Civil Cour