The main legal point established is that for res judicata to apply, the subject matter of the previous suit must be identical to that of the subsequent suit, and the issue must be directly and substantially in issue in both suits.

JUDGMENT

Biswajit Basu, J. - The instant second appeal is at the instance of the plaintiffs in a suit for permanent injunction and is directed against the judgment and decree dated april 17, 2013 passed by the 2nd Court of learned additional District Judge, alipore, District 24-Parganas (South) in Title appeal No. 127 of 2012 thereby affirming the judgment and decree dated april 17, 2012 passed by the 2nd Court of learned Civil Judge (Junior Division), alipore rejecting the plaint of the said suit being Title Suit No. 87 of 2006.

2. The plaint case of the said suit in short is thus, the plaintiffs are the owners of the four-storeyed building at premises No. 208/1a Rash Behari avenue, Kolkata-700029 and the defendants are the owners of the building at premises No. 208/1B, Rash Behari avenue, Kolkata-700029 situated at the rear portion of the building of the plaintiffs, in the eastern side of the building of the plaintiffs, there is one eight feet wide passage from north to south described under Schedule 'B' appended to the plaint which is the subject-matter of the present suit. The said passage is being used by the parties for ingress and egress to their respective buildings and they have rights to take electric, telephone and water connection through the said passage. The predecessor-in-title of the defendants claiming absolute right over the said passage filed a writ petition before the High Court but the same was dismissed. The appeal from the said writ petition being a.P.O. 310 of 1999 was also dismissed, even thereafter, the defendants, are causing disturbance to the plaintiffs in their enjoyment of the said passage. The plaintiffs lodged several complaints with the local Police Station but could not prevent the defendants from disturbing the plaintiffs, hence the suit.

3. The plaintiffs in the said suit, inter alia, have prayed for a decree of permanent injunction restraining the defendants and their men and agents from keeping car in front of the garage of the plaintiffs and/or creating any sort of disturbance in the enjoyment of the Schedule 'B' property.

The defendants, the respondents herein by an application under Order VII Rule 11(d) read with Order XIV Rule 2 of the Code of Civil Procedure prayed rejection of the plaint of the said suit on the ground that the character of the Schedule 'B' property and the rights of the parties therein have already been decided in the matter No. 434 of 1979, the writ petition filed by the predecessor-in-title of the defendants, therefore the suit is barred by the principle of res judicata. The learned Trial Judge allowed the said application, the appeal Court below by the impugned judgment and decree has dismissed the appeal preferred by the plaintiffs against the order of the learned Trial Judge rejecting the plaint of the said suit.

4. The Hon'ble Division Bench of this Court by the order dated March 24, 2014 had dismissed the instant appeal under Order XLI Rule 11 of the Code. The said order, however, was set aside by the Hon'ble Supreme Court vide order dated November 21, 2014 passed in Civil appeal No. 10472 of 2014 with the following observations:-

'We have gone through the pleadings and the orders passed by the trial Court as well as two appellate Courts. The order passed by the High Court, in our view, cannot be sustained. We do not wish to elaborate the grounds on which we come to such a conclusion, for the reason that the suit is at the very inception and any comment at this stage by us would have some adverse effect on the rights of one party or the other. We, therefore, set aside the impugned order, remit the matter back to the High Court for framing of appropriate questions of law and decision on such questions in accordance with law.'

5. Consequent thereupon, the appeal was again placed before the Hon'ble Division Bench under Order XLI rule 11 of the Code for admission and the appeal was admitted on September 27, 2021 on the following substantial questions of law to be answe