The duty of the Court to protect public property and the non-bar of a fresh suit on the same cause of action.

Darshan Singh, J.

1. This judgment of mine shall dispose of both the Regular Second Appeals mentioned above as both these appeals have arisen out of the same judgment dated 12.05.2010 passed by the learned Additional District Judge, Karnal, whereby the appeal filed against the judgment and decree dated 31.03.2009 passed by the learned Additional Civil Judge (Sr. Division) has been allowed.

2. For the sake of convenience, the status of the parties is being mentioned as in the original suit.

3. Plaintiff-respondent no. 1-Kashmir Singh has filed the suit for permanent injunction restraining defendant no. 1-Harbhajan Singh (now deceased) from blocking the road, flow of water and access to his house from the gate fixed on the rear side of his house no. 496, New Prem Nagar, Karnal. Further relief has been sought restraining defendant no. 1 from raising construction on the rear wall of the house of the plaintiff.

4. As per averments of the plaint, the plaintiff is owner in possession of house no. 496, New Prem Nagar, Karnal, vide sale-deed no. 3958 dated 17.01.1974. He raised the construction of the plot after getting the site plan sanctioned from the office of Municipal Council, Karnal. There were two roads i.e. one in front of his house and other on the rear side of the house. The same were being used by the residents of the locality and were maintained by the Municipal Council, Karnal being the owner. The flow of waste water from the house of the plaintiff was from front side to the backside. Defendant no. 1 - Harbhajan Singh, who is neither owner nor in possession of the Kacha road, but wants to grab the land. He wants to close the gate of the plaintiff and to block the flow of the water. Hence, the suit.

5. Defendant no. 1 contested the suit on the grounds inter alia that there was no Kacha road on the rear side of the house of the plaintiff as shown in the site plan. Rather, there was the plot over which defendant no. 4-appellant Punnu Ram has already raised the construction up to plinth level and he had agreed to sell the said plot to him vide agreement to sell dated 03.06.2000. Punnu Ram was the owner of the said land as he has purchased it from the Custodian Department in the year 1972 and prior to that it was agriculture land. Later on, residential plots were carved out and the same stood converted into Abadi. It was further pleaded that earlier Gurnam Singh had instituted the Civil Suit No. 527 of 1981 titled as Gurnam Singh v. Parkash Chand claiming the existence of the road on the western side, but the said suit was dismissed. Plaintiff had himself instituted Civil Suit No. 680 of 1989, titled as Sadhu Singh and others v. Punnu Lal and the said suit was also dismissed. It was pleaded that the present suit is barred by principle of res judicata. It was further pleaded that the Kanungo was appointed as Local Commissioner to demarcate the land and report about the Kacha road. The Local Commissioner has reported that 4 Biswas of land belonging to Punnu Ram was short and the same was in possession of the adjoining plot holders. It was further pleaded that the land in dispute was not a road, rather the plot forming the part of the property of Punnu Ram-appellant. All other averments in the plaint were controverted.

6. Defendant no. 2-Municipal Council, Karnal also filed the written statement pleading therein that the road on the eastern side and Bandh-road on the western side vests in the Municipal Council. It was further pleaded that as per lay out plan, there were 40 feet wide road on the eastern side and 30 feet wide Bandh on the western side, which was being used as road by the public. The remaining averments in the plaint were repelled.

7. The appellant has filed the separate written statement taking the similar pleas as raised by defendant no. 1.

8. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 17.08.2006:-

1. Whether the plaintiff is entitled to a decree