JUDGMENT

Whether a dismissal of a suit on the ground of non-

establishment of identity of property in an earlier suit would constitute res judicata as embodied under Section 11 C.P.C. in maintaining a second suit and what would be the legal position, if it is pertaining to dismissal of a counter claim are the questions came up for consideration.

2. It is an appeal by the plaintiff against the dismissal of suit for injunction simplicitor by both the courts below. The counter claim was also dismissed by both the courts below, against which no second appeal was preferred.

3. Plaint A schedule is the registered holding of the plaintiff. B schedule forms part of A schedule. The suit was filed for prohibitory injunction not to commit trespass. Counter claim was raised claiming B schedule property for removing the obstruction and for prohibitory injunction from obstructing its user. Both the suit and the counter claim were dismissed on the ground of non-establishment of identity of respective properties.

4. A pathway was provided in Ext.B1 partition of the year 1950. The dispute is with respect to right over the above said pathway. It was submitted that the dismissal of counter claim pertaini