The finding in the earlier suit was res judicata in the present suit based on the pleadings, evidence, and relevant case laws.

1. The plaintiff is the appellant; and he filed an earlier suit, O.S. No. 202 of 1959, claiming a right of way along the passage marked 'S'. in the commissioner's plan, Ex. Cl. One of the issues in that suit was "whether there was a mamool pathway leading to R.S. No. 616/10 running between R.S. Nos. 616/5 and 6, 4 and 7 as alleged by the defendants". (The passage is marked in Ex. Cl as 'F2'). That issue was raised at the instance of the respondents, the defendants and on that issue, a finding was recorded that the mamool passage marked 'F2' was the pathway used by the appellant to come from his property, R.S. No. 616/10 on the south, to his property, R S. No. 616/6 on the north. The short question for consideration in the second appeal is whether the said decision is res judicata

2.On the basis of the aforesaid finding on the said issue and also on the finding that there was no mamool pathway along the passage marked 'S', the previous suit was dismissed; and the appellant did not even attempt an appeal against that decision. On the other hand, be filed the present suit for injunction that the passage along 'F2' should be opened and that the appellant's use of the passage should not be interfered with. In this suit, one of the issues raised was whether the finding on the issue in the earlier suit mentioned hereinbefore was res judicata: and this question the Munsiff answered in the affirmative, while the Subordinate Judge answered in the negative. Since a learned judge of this Court felt that this was an important question, the case has been referred to a Division Bench.

3. After hearing both the counsel and seeing a few decisions on the point, we have come to the conclusion that the decision of the Subordinate Judge is erroneous and that the case is practically on all fours with a decision of the Supreme Court which we shall refer to by and by. We shall first refer to the pleadings in the earlier case, the evidence therein, etc., which have a bearing on the question.

4. The appellant claimed in the earlier suit that he had a right of passage along 'S', while the first respondent filed a written statement in which this right of passage was denied. He pleaded, in addition, that the passage which was available to the appellant was the passage marked 'F2' and it was on this plea that the issue was raised. Ex. B4 is the written statement filed by the first respondent; and Para.13 thereof is the relevant paragraph. Para.13 reads

"This defendant emphatically denies that there is the pathway running along the field bund lying in between R. S. No. 616/9 on the one hand and R. S. Nos. 616/8 and 616/6 on the other. (The reference is to passage 'S'.) Much less is it a mamool pathway as alleged in the plaint. No pathway existed along that since ancient times. On the other hand, he begs to submit the pathway that connected R.S. No. 616/6 to the house is R.S. No. 616/10 runs along the field bund lying between R.S. Nos. 616/6 and 616/7 on the one hand, and R. S. Nos. 616/5 and 616/4 and 616/3B on the

other. (The reference is to F2')"

The first respondent was examined as dw.1 in the earlier suit; and his deposition is marked in this suit as Ex. Al. Therein he has stated

"The usual pathway for the plaintiff was on the western side of R. S. No. 616/6-That pathway was between the tank in R.S. No. 616/5 and the fields in R. S. No. 616/6

That is like a lane."

5. The first respondent has been examined as dw.1 in the present suit as well; and he has admitted that what he stated in the earlier suit, both in the written statement and in the box, is correct. Therefore, there cannot be any doubt that the suggestion of the first respondent in the earlier suit was that the right of passage available to the appellant was not along'S' but along'F2'. Ex.A2 is the judgment in that suit; and the finding of the Munsiff on this issue was

"I am inclined to accept the evidence of Dw-1 that there has been a mamool pathway to come from R.S. No. 616/6 to R.S. No.61