The principle of res judicata prevents re-litigation of issues already decided, and concurrent findings of fact by lower courts are binding unless proven otherwise.

JUDGMENT

1. Appellant-plaintiffs (hereafter referred to 'plaintiffs') have filed this second appeal under Section 100 CPC assailing the judgment and decree dated 11.12.2014 passed in civil first appeal No.56/2008 by the Additional District and Sessions Judge No.2, Jaipur Metropolitan City, Jaipur whereby and whereunder dismissing the appeal affirming the judgment and decree dated 11.05.2002 passed in civil suit No.80/87 by the Additional Civil Judge (Junior Division) No.1, Jaipur City, Jaipur whereby and whereunder plaintiffs' suit for prohibitory and mandatory injunction has been dismissed on merits.

2. Heard learned counsel for appellants and perused impugned judgments and record.

3. This is not in dispute between parties that the property, House No.4054 situated at Chowkdi Ramchandraji, Jaganath Shah Ka Rasta, Mohalla Chitewalan, Jaipur, was belonging to Azim Baksh and the same was partitioned between his successors Aladeen and Mst. Bismillah. The decree for partition dated 04.10.1948 in suit No.180/2000 has attained finality. Plaintiffs are successors of Aladeen and defendants are successors of Mst. Bismillah. Plaintiffs claimed that on the common chowk, defendants have raised construction of walls ABCD and narrowed down the gallery (raus). Plaintiffs alleged that defendants have raised construction of wall ABCD and one room including common gallery (raus) and the same is government land. Plaintiffs further claimed that defendants are inclined to raise encroachment over the common chowk, gallery (raus) and toiletes, therefore civil suit for prohibitory and mandatory injunction was filed.

4. Defendants filed written statement and contended that there is no dispute about common chowk and toiletes, but they stated that wall ABCD and room were made by them on their property. Further it was alleged that in respect of such construction earlier civil suit No.273/73 was filed which has been decided vide judgment dated 22.11.1979, which judgment has been affirmed in the first appeal vide judgment dated 22.10.1981, therefore, the issue in respect of mandatory injunction made by plaintiffs alleging that the portion is common has already been decided finally on merits and again challenge to same construction is hit by the principle of res-judicata.

5. Both courts below, on the basis of respective evidence of both parties, have concurrently observed that the construction made by defendants is not on the common chowk and that issue has already been decided in the judgment dated 22.11.1979, which has been affirmed in the first appeal vide judgment dated 22.10.1981.

6. As far as the issue of chowk, pol and stairs is concerned, there is no dispute between parties that the same are of common use. This court finds that once both courts below have already protected rights of plaintiffs to use the common chowk, pol and right to access through stairs, which have been observed to be of common use, hence plaintiffs cannot claim any grievance in that respect. As far as prayer of plaintiffs seeking demolition of construction of wall abc is concerned, the issue has already been decided in the previous suit No.273/73 vide judgment dated 22.11.1979. The fact findings recorded by courts below are based on appreciation/re-appreciation of evidence on record. It is observed that defendants also have not challenged the finding of fact recorded by courts below.

7. In case of State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637], the Hon'ble Supreme Court held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Hon'ble Court held as under:-

'16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidenc