1. Deepak Jain, petitioner had filed suit No.12/1998 for permanent prohibitory injunction against Jain Nagar Welfare Society-respondent, seeking reliefs which read thus:--

"1. That the defendant, its agents and servants and all members of the defendants society be restrained from raising any construction at the site marked Red in the site plan and/or infront of the plot of land marked "A" in the site plan directly, indirectly or otherwise and/or to interfere with the right of the plaintiff to use road leading to his plot of land and/or to interfere with the plaintiffs right of ingress or outgress and be further restrained from creating any impediment/obstruction to the plaintiff right to use the said plot of land."

2. It was during the pendency of this suit that he filed yet another suit seeking the following reliefs:--

"1. It be declared that the road marked "C" in the site plan annexed to the plaint is a public road and the plaintiff along with his brothers has absolute right to use the said road in common with other residents of Jain Nagar.

2. It be declared that wall marked "D" in the site plan belongs to the plaintiff and he is the owner of the said wall and has every right to remove/demolish the said wall as he may deem fit.

3. By a permanent prohibitory injunction, the defendants, their agents and servants including office bearers be restrained from interfering in the use of the road marked "C" in the site plan and in the removal/demolition or construction of the wall marked "D" by the plaintiff."

3. The subsequent suit of Deepak Jain was based on the grounds which for facility of reference are reproduced hereunder:--

"1. That the plaintiff is the owner of a plot of land measuring 60 x 80 along with his brothers and adjacent to this plot, he and his brothers purchased 48 kanals of land under Survey Nos.531 & 532.

2. That there is a public road towards the west of plot measuring 60 x 80 which has been constructed by Jammu Municipality and is maintained by it and defendant wanted to raise construction on this road so a suit had been filed before this Court.

3. That there is a brick wall in between plot measuring 60 x 80 and the chunk of 48 kanals of land which the plaintiff wanted to remove, but the defendants society lodged a protest."

4. Objection taken by the respondent that the second suit of Deepak Jain was hit by Order 2 Rule 2 of the Code of Civil Procedure resulted in the framing of an issue as to whether the suit was barred under Order 2 Rule 2 CPC?

5. Learned Ist Additional District Judge, Jammu dismissed the second suit holding that the subject matter of litigation and cause of action was same as that of the earlier suit. It further held that relief of declaration sought in the subsequent suit, was available to the plaintiff when he had filed the earlier suit. Having omitted to sue for the relief of declaration in the earlier suit, the second suit would be barred, ruled the trial Court.

6. Mr. Deepak Jain, petitioner has assailed the order of the trial Court dated 05-02-2005 in this revision petition.

7. Mr. R. P. Sharma, learned counsel for the petitioner/plaintiff while relying upon Kunjan Nair Sivaraman Nair V. Narayanan Nair, reported as AIR 2004 SC 1761, Kewal singh V. Lajwanti, reported as AIR 1980 SC 161 & Raman Ittiyathi V. Pappy Bhaskaran, reported as AIR 1990 Kerala 112, submitted that the trial Court had failed to distinguish the separate and distinct cause of action on which the subsequent suit had been founded and had thus fallen in error in holding the subsequent suit not maintainable.

8. Mr.L.K.Sharma, learned counsel for the respondent Society places reliance on Kamal Kishore Saboo Verus N.Humayun Kamal Hassan Khan, reported as AIR 2001 Delhi 220, Gajanan R.Salvi Verus Satish Shankar Gupte and Ors., reported as AIR 2004 Bombay, 455 and Kewal Singh Versus Lajwanti, reported as AIR 1980 SC 161 to support the order of the trial court.

9. I have considered the submissions of learned counsel for the parties and gon

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