JUDGMENT :

Tarlok Singh Chauhan, J.

On 27.4.2007, this appeal came to admitted on the following substantial questions of law:

1. Whether a decision rendered under the provisions of Order 17 Rule 3 CPC is a decree and will operate as res judicata and bar a second suit for the same relief. It so, whether the findings of the learned courts below that the case is not hit by res judicata are sustainable in the eyes of law?

2. Whether the learned courts below have arrived at a right conclusion by holding that the order dated 25.3.2000 (Ext. DW1/A) will not bar a second suit oblivious of the fact that the issues No. 1 and 2 framed thereof have been decided against the plaintiff in the subsequent suit inter se the parties regarding the same subject matter and cause of action?

The parties shall be referred to as the "plaintiff" and "defendant".

2. The un-controverted facts are that the plaintiff/respondent prior to filing of the instant suit had filed a civil suit (C.S. No. 83/2000, titled as Dau Dayal vs. Asha Devi) for permanent and mandatory injunction against the defendant/appellant before the learned Senior Sub Judge, Kullu and the same was dismissed under Order XVII Rule 3 CPC on 25.3.2000 when the plaintiff failed to lead any evidence despite several opportunities.

3. It is thereafter that the instant suit qua the same property bearing Khasra No. 2552/2303, Khata/Khatauni No. 1013/1020, situated in Phatti Balh, Kothi Maharaja, Tehsil and District Kullu, H.P. came to be filed. The plaintiff claimed mandatory injunction directing the defendant to remove, pull down and demolish the shed measuring 111.92 sq. feet as shown in the site plan in pink colour marked by letters 'ABCDEF' raised by the defendant in absence and without the consent of the plaintiff wrongly and illegally over the slab of the plaintiff and further directing the defendant to put the suit land into its original position and in the alternative, suit for possession.

4. It was averred that the suit land was originally owned and possessed by one Ikadshi Dass, who had raised single storied lintel roof measuring 16' x 6" in length and 26' in breadth over the suit land and the same was purchased by the plaintiff vide sale deed, dated 12.9.1995. It was further averred that the plaintiff was basically resident of Mandi Town and earlier he was in possession of the structure, which was in the nature of a shop as a tenant and after purchasing the same in the year 1995, he became its absolute owner in possession along with land underneath to it existing over Khasra No. 2552/2303. It was further averred that the plaintiff after purchasing the suit property also raised one shed over the slab of the shop measuring 112.50 sq. feet, as shown in the site plan in green colour marked by letters 'EDNM'. Lastly, it was averred that the defendant despite having no right, title and interest over the suit property in the beginning of January 2004 when the plaintiff along with his family members had gone to his native place in Mandi, encroached upon the aforesaid slab of the plaintiff wrongly and illegally by raising the shed as shown in the site plan marked by letters 'ABCDEF'. The defendant was requested several times to admit the claim of the plaintiff, but she refused to do so, hence, the instant suit.

5. The defendant contested the suit by filing written statement inter alia taking preliminary objections regarding the suit being barred by limitation, res judicata and estoppel. On merits, it was admitted that the plaintiff was owner in possession of the suit land, but it was denied that the whole of the ground floor of the plaintiff was existing over the suit land by alleging that part of the house standing over the suit land, which was about 1/3rd portion of the house, was owned and possessed by the defendant, which had been illegally encroached by the plaintiff in absence of the defendant. It was further alleged that in the year 1993, when the defendant had gone to her native place in Lahaul,