JUDGMENT :

Mahendar Kumar Goyal, J. - This civil second appeal, which is reported to be time barred by 1042 days, is accompanied with an application under Section 5 of the LIMITATION ACT .

2. For the reasons stated in the application under Section 5 of the LIMITATION ACT , the same is allowed. The delay in preferring the appeal is condoned.

3. This civil second appeal is preferred against the judgment and decree dated 20.04.2019 passed by the learned Additional District Judge No.2, Sikar (for brevity, "the learned Appellate Court") in Civil Regular Appeal No.35/2006, BT No.4/2006 (CIS No.347/2014) whereby, while dismissing the appeal, the judgment dated 17.03.2006 passed by the learned Additional Civil Judge (Junior Division), Sikar (for brevity, "the learned trial Court") decreeing the suit for mandatory injunction, permanent injunction and damages, has been upheld.

4. The relevant facts in brief are that Shri Keshardev Mor, the predecessor-in-interest of the respondents No.1/1 to 1/3(for brevity, "the plaintiff") filed a suit for declaration, mandatory injunction, permanent injunction and damages against the appellant/defendant No.2 (for brevity, "the appellant") and the respondents No.2 to 12 stating therein that the subject property comprising of Plots No.106 & 107 situated in Ward No.23, Sikar was under his ownership and possession. Alleging that the defendants were trying to interfere in his use and occupation of the subject property and have encroached upon a part of it, the decree as aforesaid was prayed for.

5. The appellant along with defendants No.1 & 4 in their joint written statement denied the averments made in the plaint. It was averred that in view of decision of an earlier suit filed by the plaintiff with similar relief, the instant suit was not maintainable. It was, therefore, prayed that the suit be dismissed.

6. On the basis of pleading of the respective parties, the learned trial Court framed 10 issues including relief. Issue No.8 pertained to maintainability of the suit on account of res-judicata. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgment dated 17.03.2006 to the extent as aforesaid. The civil first appeal preferred thereagainst by the appellant along with co-defendants has been dismissed by the learned Appellate Court vide judgment and decree dated 20.04.2019.

7. Assailing the impugned judgment and decree, learned counsel for the appellant submits that the learned Courts erred in deciding the issue no.8 in favour of the plaintiff without appreciating that an earlier suit filed by him with similar relief was decreed and hence, the instant suit was hit by the principle of res-judicata. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 20.04.2019 be quashed and set aside and the suit filed by the plaintiff be dismissed.

8. Heard. Considered.

9. While deciding the issue no.8, the learned trial Court has observed that vide its orders dated 11.07.2000, 17.10.2000 & 7.12.2000, it was made clear that the instant suit was not hit by the principle of res-judicata on account of there being differences in the parties, the subject matter, pleadings and relief in it and the earlier suit already decreed. It was also held that the earlier suit was decided on the basis of compromise and not on merit and hence, even otherwise also, the principle of res-judicata was inapplicable. The learned Appellate Court has affirmed the findings qua issue no.8 re-appreciating the evidence on record. Learned counsel for the appellant fairly admitted that during pendency of the suit, his objection as to the i