IMPORTANT POINT
The main legal point established in the judgment is the application of res judicata in a suit for declaration, possession, and injunction, and the binding nature of a finding on an issue relating to title in an earlier suit for injunction in a subsequent suit for declaration.

ORDER :

1. The present revision petition has been preferred against the order dated 19.07.2013 passed by Additional District Judge, Nathdwara, District Rajsamand in Civil Suit No.24/07 whereby while deciding issue No.3 as a preliminary issue, the learned Court below held that the suit in question would not be barred by res judicata.

2. The facts of the case are that a suit for declaration, possession and injunction was preferred by one Chandrasekhar against the defendant Pushpa Devi. Issue no.3 as framed in the said suit was:

^^vk;k ;g okn /kkjk 11 lhihlh rFkk vkns'k 2 fu;e 2 lhihlh ds izko/kkuksa ds vuqlkj ckf/kr gksdj iks"k.kh; ugha gS \^^

3. The Court proceeded on to decide issue No.3 as a preliminary issue vide impugned order dated 19.07.2013 in favour of the plaintiff and held the suit to be not barred in terms of Section 11 and Order 2 Rule 2, CPC.

4. The case of the defendant was that the present plaintiff Chandrasekhar purchased the property in question from one Shyam Lal. Earlier, a suit for mandatory and permanent injunction was filed by Shyam Lal in the year 2004 against the present petitioner-defendant Pushpa Devi. In the said suit, issue No.1 was framed as under:

^^¼1½ vk;k okn i= ds iSjk la[;k 1 esa of.kZr iM+kSlksa ds uki dk Hkw[k.M oknh ds LokfeRo o vkf/kiR; dk gS\^^

Vide judgment and decree dated 06.11.2006, the suit as preferred by Shyam Lal was dismissed and issue No.1 was decided against him. The Court therein held as under:

^^oknh ds okn dks lkfcr djus dk Hkkj oknh ij Fkk ijUrq mlus fooknxzLr lEifRr ij viuh ekS:lh tk;nkn gksdj caVokjs esa vius fgLls esa vkus ckcr~ dksbZ fy[kkiढ+h ;k vU; lk{; is'k ugha dh gSA u gh vius iwoZtksa dk 'ktjk gh oknh us vius okn i= esa is'k fd;k gS ftlls fd ;g Li”V gks lds fd fdl izdkj fookfnr lEifRr oknh ds fgLls esa vkbZ gSA fookfnr lEifr ds vkf/kiR; ckcr~ oknh us dksbZ nLrkost is'k ugha fd;s gSA Lo;a oknh us viuh izfrijh{kk esa ;g Lohdkj fd;k gS fd mlds ikl bl edku ckcr~ dksbZ jlhn ugha gS tks dHkh tek djkbZ gksA tgka rd pkSd o ysVªhu oknh o izfroknhx.k ds 'kkeykrh gksus dk iz'u gS] bl laca/k esa Hkh oknh ds rF;ksa dk [k.Mu djrs gq;s izfroknhx.k us viuh futh LokfeRo o vkf/kiR; ds gksuk crk;k gSA oknh us mDr pkSd o ysVªhu ds 'kkeykrh gkssus ckcr~ dksbZ fy[kkiढ+h U;k;ky; esa is'k ugha dh gSA tcfd izfrijh{kk esa mlus ;g Lohdkj fd;k gS fd caVokjs dh fy[kkiढ+h ucZnkckbZ ds ikl gS ftlls mldk O;ogkj vPNk gS ijUrq vkxs ;g Lohdkj fd;k gS fd eSa mlls fy[kkiढ+h yk ldrk gwa ijUrq oknh us dksbZ fy[kkiढ+h ykdj is'k ugha dh gSA ,slh fLFkfr esa tcfd oknh us fy[kkiढ+h ucZnkckbZ ds ikl gksuk o mlls vius vPNk O;ogkj gksuk crk;k gS ijUrq fy[kkiढ+h ykdj is'k ugha dh gS ftlls fd ;g Li"V gks lds fd fookfnr pkSd o ysVªhu 'kkeykrh gS ,oa fooknxzLr tk;nkn oknh dks caVokjs esa izkIr gqbZ gSA ,slh fLFkfr esa oknh mDr nksuksa fook|d mijksDr foospu ds vk/kkj ij vius gd esa lkfcr djus esa vlQy jgk gSA vr% fook|d la- 1 o 2 oknh ds fo:) o izfroknhx.k ds gd esa r; dh tkrh gSA”

5. The case of the defendant was that in the earlier suit, the same points of determination were under consideration and the issue was substantially the same. Issue No.1 wherein the factum of ownership and possession of the plaintiff was in question, was specifically decided against the plaintiff. Meaning thereby, the issue of ownership was decided against the plaintiff and the present plaintiff Chandrasekhar, who stepped into the shoes of the earlier plaintiff, would definitely be bound by the said finding.

6. The Court below while deciding the present issue No.3 against the plaintiff held that the question of ownership was left open in the earlier suit and hence, it cannot be held that the issue had been finally adjudicated and determined.

With the above finding, the Court held the suit not to be barred by res judicata.

7. Learned counsel for the petitioner submitted that the finding of the Court below is totally erroneous as the issue was not left open in the earlier suit. He submitted that a perusal of the finding as recorded in the earli