IMPORTANT POINT
The main legal point established in the judgment is the application of res judicata and limitation in determining the admissibility of the suit. The court emphasized the importance of adjudicated issues and the concept of clean hands in legal proceedings.

JUDGMENT :

1. The present Second Appeal, under Section 100 of the Civil Procedure Code, (hereinafter referred to as “the Code” is filed by the appellant – original plaintiff, challenging the impugned judgment and decree dated 21.09.2021 passed by the learned 9th Addl. District Judge, Kachchh at Bhachau in Regular Civil Appeal No.15 of 2020 (Old No.RCA No.19 of 2018) as well as the impugned judgment and decree dated 31.03.2017 passed by the learned Principal Civil Judge, Bhachau, Kachchh in Regular Civil Suit No.23 of 2011, whereby the same were dismissed.

2. Heard Mr. Mehul H. Rathod, the learned counsel for the appellant at length.

3.1 He has drawn the attention to the impugned judgments of the courts below as well as paper-book along with relevant documents, which were produced by him for perusal of the Court. Additionally, he has referred the plaint in question and has submitted that the courts below have not properly considered the case of the present appellant and the impugned judgments and decree suffer from vices of non-application of mind to the material on record and unreasoned one and, therefore, the same are required to be set aside. Furthermore, he has submitted that the courts below have erred in holding that there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing Index No. 1499, and without there being an iota of evidence on record to the effect that there was error in writing measurement of the land in the registered sale deed and therefore also, the same are liable to be set aside. Furthermore, he has submitted that the courts below have erred in holding that the suit is barred by principle of res judicata, though the earlier civil suit being Regular Civil Suit No.47 of 1987 was in respect of taking back the possession, whereas the present suit was for declaration and permanent injunction in respect of A.02-23 Gutha land of Revenue Survey No. 908 Paiki i.e. title of the land. Furthermore, he has submitted that it is a settled legal position that a registered document and it's contents are presumed to be true unless, the same are agreed upon by the parties to the suit or adjudicated by a competent court and the learned courts below held that, there could be an error in writing measurement of the land in the registered sale deed in the absence of both; the criteria and material on record and solely on the basis of surmises and presumptions and, therefore also, the same are liable to be set aside. Furthermore, he has submitted that the impugned judgments and decree are not in consonance with the provisions of Civil Procedure Code, 1908 and Indian Evidence Act, 1872 and, therefore, also the same are liable to be set aside by exercising the jurisdiction under Section 100 of the Code. Furthermore, he has submitted that the courts below have also erred in dismissing the suit as well as appeal merely relying on averments made in the written statement by the defendant without leading any cogent and convincing evidence by the defendant and, therefore also, the impugned judgments are required to be set aside.

3.2 Furthermore, he has drawn my attention to proposed substantial question of law, which is as under:

The appellant herein raises following substantial questions of law:

(i) Whether the Ld. Courts below were legally right in dismissing Regular Civil Suit No. 23 of 2011 and Regular Civil Appeal No. 15 of 2020?

(ii) Whether the Ld. Courts below were legally right in holding that, the suit is barred by principle of Res-Judicata, though the earlier civil suit being Regular Civil Suit No. 47 of 1987 between the parties were in respect of taking back the possession, whereas the present suit was for declaration and permanent injunction in respect of A. 2-23 Gu. land of revenue survey No. 908 paiki?

(iii) Whether the Ld. Courts below were legally right in holding that, there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing ind