A plea of res judicata, being a mixed question of law and fact requiring a holistic examination of previous pleadings and evidence, cannot be adjudicated summarily under Order VII Rule 11 of the CPC, and bringing successive frivolous suits for previously litigated property rights constitutes an abuse of process.

ORAL ORDER

1. The present Second Appeal is instituted under Section 100 of the Code of Civil Procedure, 1908, assailing the legality, propriety, and correctness of the judgment and decree dated 14.03.2022 rendered by the learned 8th Additional District Judge, Bhuj in Regular Civil Appeal No.111 of 2019, whereby the appellate court has been pleased to affirm the judgment and decree dated 03.09.2019 passed by the learned 2nd Senior Civil Judge, Bhuj in Regular Civil Suit No.177 of 2012.

2. Shorn of non-essential details, the relevant factual matrix of the lis in hand is adumbrated, thus: The plaintiff instituted Regular Civil Suit No.177 of 2012 before the learned Civil Court at Bhuj seeking a declaration of ownership over sub-plot Nos.1201, 1202 and 1203 carved out of the scheme of 99 plots on Survey No.870, Bhuj, and a concomitant injunction restraining the defendant from asserting any right, raising any construction, or entering upon the suit property, coupled with a further prayer for demolition of any construction allegedly undertaken by the defendant. Upon a full-fledged trial and after appreciating the evidence led by the parties, the learned 2nd Additional Senior Civil Judge, Bhuj, dismissed the suit vide judgment and decree dated 03.09.2019. Aggrieved thereby, the original plaintiff preferred Regular Civil Appeal No.111 of 2019; however, the learned 8th Additional District Judge, Bhuj, by judgment and decree dated 14.03.2022, affirmed the findings of the trial court, thus leaving the plaintiff with no alternative remedy but to invoke the appellate jurisdiction of this Court.

3. Learned advocate for the appellant would contend, in tandem with the factual milieu borne out from the record, that the appellant-society is a duly registered cooperative housing society to which the suit land was allotted by the Collector vide order dated 02.04.1984, upon due payment of the premium, thereby vesting ownership and lawful possession in the appellant. The resolutions of the society, the allotment orders, and allied documents establishing the appellant’s title have been kept sub silentio and wholly ignored by both Courts below. This deliberate exclusion of material documentary evidence, which constitutes the very life-blood of the appellant’s case, indubitably amounts to a serious error of law and jurisdiction, rendering the concurrent findings perverse.

3.1. It is further urged that both Courts below have committed a manifest error in placing reliance upon RCS No.118 of 1990 and RCS No.204 of 2005 suits to which the present defendant was not a party and whose subject matter pertained merely to right of way and open space relating to GIDC. The allottee members of the appellant-society, whom the defendant purports to represent, were also not parties thereto. Ergo, the invocation of constructive res judicata or estoppel is wholly misconceived.

3.2. Learned advocate would submit that the defendant has candidly admitted in his cross-examination that he neither owns the suit plots nor possesses any title documents; that the land stands allotted to other individuals; and further that he is merely a poa holder without even producing the allotment letters or the alleged sale deeds. Such oral assertions, in absence of registered conveyances, constitute no evidence in the eye of law. On the contrary, witnesses from GIDC have unequivocally admitted that the land had been found encroached, that it was returned by the Collector, present lis and that it stands allotted to the appellant-society and its members. These admissions, vetted on the touchstone of cross-examination, unequivocally for