Judgment:
D.R. Khanna, J.
(1) Suit No. 115 of 1964 was instituted by Nand Lal and and another against Sultan Singh and others in the Court of Sub-Judge, Delhi, for permanent injunction, seeking restraint of the defendants for constructing any obstruction in the village thorough fare 'EFGH' shown in red colour in the sketch plan attached with the plaint, and requiring the defendants to remove the construction, if already put in there. The plaintiffs had claimed that they were in proprietory possession of the southern side plot/gher of this thoroughfare shown as 'ABCD' and in the said plan, forming part of khasra No. 1503. The village thoroughfare which constituted khasra No. 1500, was said to be the only passage connecting the plaintiffs said plot/gher with the village abadi. The defendants were shown to have their plots and 'gitwars' on the northern side of the thoroughfare bearing khasra Nos. 1498 and 1499. The threatened construction by the defendants was thus it was stated likely to not only obstruct the only passage to their plot from village abadi, but would also result in a portion of the thoroughfare being wrongfully and illegally encroached by the defendants.
(2) The said khasra number were of land long before the consolidation in the village which took place in about 1952. it appears that the Lal Dora of the village abadi was extended so as to include part of the 'shamlat' land also It was over a part of that 'shamlat' land bearing khasra No. 1503 that the plaintiffs claimed that they were in proprietory possession. It measured 19 biswas.
(3) The defendants denied that any thoroughfare as claimed by the plaintiffs existed at the spot, or that the same constituted as their only passage to their plot/gher. in fact, the plaintiffs' proprietory possession over the plot/ gher too was denied,
(4) The trial of the suit proceeded, and one of the issues framed was : 'Whether the plaintiffs had locus standi to file the suit ?' The other issue concerned the land in suit being a thoroughfare. This suit was decreed by the trial court on 21-3-1967 after holding that the disputed land was in fact a thoroughfare and any obstruction therein apart from being a public path, was likely to obstruct passage to the plaintiffs' southern side plot/gher, shown as 'ABCD' in the plan. In appeal, however, the learned Additional District Judge reversed the decree, and after extensively going through the revenue and consolidation papers, the report of the Commissioner who had been appointed to effect measurements at the spot, and the note of the Sub-Judge who was earlier seized of the suit, made after the spot inspection, held that it was not shown that the land in dispute constituted as a public thoroughfare. It was also observed that the plaintiffs had not been able to establish that they were in possession of southern side plot 'ABCD' in the said plan from the evidence placed in record. In para 9 of the judgment it was taken note that certain mutations had not been produced which could show that the owners of khasra No. 1503 were deprived of piece of land.' Earlier in para 6 it was observed that another mutation No. 853 showed that the land comprised in khasra Nos. 18/2 and 89/7/1, totalling 7 bighas 16 biswas, belonging to the plaintiffs was mutated in favor of 'shamlat deh' in exchange of some land given to the plaintiffs from 'abadi deh.' However, the area of the land so given to the plaintiffs, was not mentioned, nor any other particulars of the said land had been given therein from which it could be vouched with some element of certainty that the land given to the plaintiffs was the same which was claimed to be part of khasra No. 1503 in para 1 of the plaint.
(5) The plaintiffs' second appeal to the dismissal of the suit in first appeal was rejected in liming by the High Court on 18-12-1969, with the observation that findings were essentially on question of fact based on evidence.
(6) It was thereafter that the said plaintiffs brought another suit bearing No. 443 of 1969 against Sultan Singh and another, in which it was alleged that during the pendency of the said suit, the defendants had forcibly taken possession of the plot of land/gher which the plaintiffs were claiming to exist on southern side of the said thoroughfare, and to which that thoroughfare was the only path. The defendants in this suit took a preliminary objection that this suit was barred by resjudicata as the ownership of this plot was directly in issue in the earlier suit and bad been decided against the plaintiffs. This plea prevailed with the Sub Judge, and as such the suit was dismissed. In appeal, however, the learned Additional District Judge reversed that finding after holding that the subject matter in the earlier suit concerned the public thoroughfare and not the plot/gher of the plaintiffs, and the controversy with regard to this plot/gher was incidental to the adjudication of the dispute with regard to the former. The suit was, thereforee, directed to be proceeded with on merits.
(7) It is against this decision of the learned Additional District Judge that the present second appeal has been brought by the said defendants.
(8) I have beard the parties and given my due consideration to the entire circumstances. It is obvious from the narration of facts above that the subject-matter of the earlier suit was the public thoroughfare over which the defendants were threatening to effect construction. The plaintiffs as proprietors in the village, could assail that encroachment on the public path. In fact, in para 11 of the plaint in that suit, the plaintiffs had specifically mentioned that the blocking and inclusion of portion of thoroughfare in their 'gitwar' was wrongful and illegal act on the part of the defendants. Of course, their main contention was that the obstruction of the passage would deprive them of their only access from their plot to the village abadi. Still the central controversy was about the existence or otherwise of the public thoroughfare. Issue No. 2 also pertained to the existence of this thoroughfare. Issue No. 1 was : Whether the plaintiffs had locus standi to file the suit. This locus standi had reference to whether they could feel aggrieved and had cause of action on the blocking of the thoroughfare. No specific issue was framed about the ownership of the plaintiffs' plot/gher, 'ABCO' as shown in the plan attached with the plaint. Any decision thereon was not necessary for the decision of-that suit. If, thereforee, the courts went through the evidence placed on record for ascertaining whether the public thoroughfare existed, and whether it constituted the only path to the plaintiffs' plot/gher, this was essentially for determining the thoroughfare nature of the disputed land. The ownership and possession of the plot/gher, claimed by the plaintiffs, was not directly and substantially in issue in the suit. In fact when the learned Additional District Judge observed that there were some missing links in the evidence, the plaintiffs can legitimately assert that they did not lead their entire evidence as they were not conscious that the ownership of their plot/gher was being adjudicated. According to them, they bad not sought that adjudication nor that plot was made the subject matter of the suit. No relief with respect to this plot was besides claimed.
(9) Mr. Vats appearing on behalf of the present appellants, have vehemently contended that the judgment of the learned Additional District Judge in the previous suit was thorough and went through thread-bare the evidence placed on record in the trial court as well as in appeal, and came to a definite finding that the plaintiffs were not the owners of the southern side plot/gher as claimed by them. Such a finding, he pleaded, constituted as resjudicata, and should not be allowed to be again opened by way of a new suit. He has placed reliance upon Daryao and others v. State of U.P. and others. : [1962]1SCR574 , in support of his contention that the binding character of the judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law and the general considerations of public policy that a finality should be attached to the binding decisions and the individuals should not be vexed twice over the same kind of litigation, in Mahant Prem Dass Chela Mahant Bhola DaSs v. Joti Pershad, : AIR1971Delhi282 it was held that in considering the applicability of section 11 the Court in the subsequent suit has only to see the matter which was directly and substantially in issue in earlier suit between the parties and the decision thereon. In Mahomed Ah Haidar Khan and another v. Upendra Nath Ghose and others : AIR1934Cal179 , it was observed that in order to sustain a plea of resjudicata it was not necessary that an issue should have been expressly framed on the question. It was enough if the matter was in issue in substance and the matter in controversy in the subsequent suit bad been decided in the previous suit either expressly or by necessary implication ; because the application of the rule of resjudicata by the Courts in India should be influenced by no technical considerations of from out by matter of substance within the limits allowed by law. To the same effect was the case Mt. Sarswati Jiwa Ram v. Ralla Ram Gonda Ram and others, 1956 Pepsu 69. It was observed that if it was found that the matter was directly and substantially in issue even though no distinct issue was raised, it was sufficient to treat the decision thereon as barred by resjudicata. Moreover, under Explanationn Iv to section Ii, any matter which might and ought to have been made ground of defense or attack in the former suit should be deemed to have a been matter directly and substantially in issue in that suit. The object of this Explanationn was to force the plaintiff or the defendant to rely upon all grounds of attack or defense which were open to him. Section 11 not only barred the trial of subsequent suit, but also a trial of an issue which had been previously heard and finally decided.
(10) In my opinion, however, none of these decisions come to the aid of the appellants. As already noted, the central controversy in the previous suit related to the public thoroughfare and that was the subject-matter directly and substantially in issue there. It was, of course, mentioned that the same constituted as the path-way to the land of the plaintiffs. This apart, the plaintiffs held the status of 'biswedar' in the village, and they sought removal of the obstruction in the thoroughfare on this score 'also. The issue pertaining to locus standi was in these context only. The learned Additional District Judge, moreover, found certain missing links in the evidence of the plaintiffs with regard to the ownership of their plot/gher. In the circumstances as already noted above, the plaintiffs could legitimately plead that they did not ie ad their entire evidence as they were not conscious that the ownership of the plot/gher was being decided. They had not sought any relief with regard to the plot nor had sought any adjudication thereon. It could not, thereforee, be treated as the subject-matter of the suit. No question of resjudicata, thereforee, arises.
(11) The result, thereforee, is that the appeal is dismissed. No order as to costs.
(12) Parties to appear before the trial court on 14-10-1985. Record of that court be sent back forthwith.