K. SIVARAMAIAHversusRUKMANI AMMAL

                                                                                    .......
A                              K. SIV ARAMAIAH
                                         v.
                                                                                               t
                               RUKMANI AMMAL

                              NOVEMBER 20, 2003
                                                                                              "'
B                  [R.C. LAHOTJ AND ASHOK BHAN, JJ.)

          Code of Civil Procedure, 1908 :

         S. JJ-Res judicata-Suit between the parties restraining defendants
c from opening windows and ventilators overlooking plaintiffs poperty--
  Dismissed-Later, second suit between parties filed by defendant in
  previous suit subject matter. of controversy whereof was windows and
   ventilator overlooking other party's property and plaintiff seeking relief
  alleging acquisition of prescriptive rights-Suit withdrawn at appellate
  stage-Third suit between the parties filed by defendant, in first suit
D claiming right for light and air through windows and ventilator, acquired
   by way of prescription-Suit dismissed as barred by res judicata-Held,
   the third suit is not barred by res judicata-The plaintiff therein has to
   establish acquisition ofprescriptive right ofeasement u/s. 15 of Easements
   Act, 1882 by reference to date of institution of suit-This issue did not and
E could not have been arisen for decision either by way of ground of attack
   in the second suit or by way of defence in the first suit-Moreover the first
  suit was dismissed in so far as relief of injunction is concerned-Judgment
   in the first suit cannot constitute res judicata for the third suit-So far as
  the second suit is concerned the findings recorded in the judgment therein
F could have constituted res judicata, but once appellate court permitted
   withdrawal ofthat suit with liberty to file afresh suit, all proceedings taken
   therein including the judgment passed by trial court have been wiped out
                                                                                        ..
  and as such the judgment therein does not constitute res judicata in the
  subsequent suit-Easement Act, 1882-S. J5.

G         Res judicata-Suit withdrawn at appellate stage with permission of
    the court to file a fresh suit-Subsequent suit between the same parties on
    the same cause of action-Held, a judgment given in a suit which has been
    permitted .to be withdrawa with liberty of filing' a fresh suit on the same
    cause of action cannot constitute res judicata in a subsequent suit filed
                                                      /
H   pursuant to such permission of the court.
                                         12
                    K. srv ARAMAIAH v. RUKMANI AMMAL                      13

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7433 of A
    1997.

         From the Judgment and Order dated 19.2.97 of the Madras High
    Court in S.A. No. 1252 of 1996.

         S. Balakrishnan, Subramonium Prasad and S.N. Jha for the Appellant.   B
         A.T.M Sampath and Ms .. T.S. Santhi for the Respondent.

         The foll?wing Order of the Court was delivered :

          The appellant and respondent are the owners of adjoining properties C
    situated at Iyyasamy Chetty Street, Triplicane, Chennai-5. Both the
    properties earlier belonged to M.M. Abdul Shukur Saheb. The appellant
    purchased his property described as Door No. 5 (New Door No. 6) under
    sale deed dated 28th April, 1975. The property situated on the western side
    of the appellant's property was purchased by the respondent under sale D
    deed dated 30th June, 1976. The respondent's property is described as Do~r
    No. 4 (New Door No. 5). It appears that at the time of purchase by the
f
    appellant his property was double storeyed i.e. having a ground floor and
    the first floor. The appellant demolished the first floor of his building and
    re-constructed the first floor and second floor above. In the western wall E
    of his property situated towards the respondent's property the appellant
    opened three windows in the first floor and three windows and one
    ventilator in the second floor at the time of construction of the above said
    two floors as stated hereinabove. The respondent's mother filed the
    Original Suit No. 8206/1976 against the appellant seeking a mandatory
    injunction directing the appellant to close all the windows and ventilator F
    overlooking the respondent's property. The respondent's mother also
    claimed compensation for the damage caused to his eastern wall in the
    process of reconstruction by the appellant. According to the respondent's
    mother, the appellant had newly opened all windows and the ventilator
    overlooking the respondent's property through the windows and the G
    ventilator and did not have any right to do so. The appellant pleaded, inter
    alia, that the first floor which existed prior to the new construction and
    which was demolished also had three windows overlooking the respondent's
    prope1iy and, therefore, the respondent's mother was not entitled to the
    mandatory injunction sought for. The learned Civil Judge who decided the H
    14                  SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A civil suit by the order dated 26th July, 1979 did not decide the question
    as to whether any easmentary right to light and air had accrued to the
    appellant. However, the learned Civil Judge found that the windows in the
    pre-existing first floor overlooking the respondent's property did not exist
    for about 40 years as was urged by the appellant. The learned Civil Judge
B   proceeded on the legal proposition that a neighbour was not entitled to
    mandatory injunction seeking closure of the other neighbour's windows
    and ventilator or any openings overlooking his property and it is always
    open for any one to raise a wall on his own property and close the openings
    in the adjoining property ifthe adjoining property owner had not perfected
C   his right to light and air by prescription extended over 20 years of period.
    This judgment has achieved a finality as it was not appealed against by
    either party.

          In the year 1989, the appellant filed a suit (O.S. No. 735911989)
    against the respondent, the exact subject matter of the suit is not ascertained
D   as copies of the pleadings in that suit are not available on record. However,
    it appears that the windows and the ventilator overlooking the respondent's
    property were the subject matter of controversy and the appellant was
    seeking relief alleging the acquisition of prescriptive right. The suit came
    to be dismissed. The plaintiff preferred an appeal registered as FA 312/
E   1991. However, the appeal could not be decided on merits as the appellant
    sought for withdrawal of the suit with liberty to file a fresh suit on the same
    cause of action. The Appellate Court permitted the suit to be withdrawn
    with liberty as prayed for and the appeal was dismissed as infructuous m
    view of the suit itself having been withdrawn.

F       In view of the permission allowed by the Appellate Court in FA No.
  312/1991, the appellant filed a fresh S1,1it registered as OS No. 234/1994.
  The appellant canvassed in his plaint, right for light and air through the
  six windows and the ventilator situated in the western wall of his property
  having been acquired by way of prescription. He also sought for a
G preventive injunction restraining the respondent from raising any
  construction which would have the effect of blocking the openings in his
  western• wall. The suit was contested by the respondent by raising all
  possible'defences including the plea that the appellant's suitwas barred
  by res judicata.·It was submitted that in 'earlier-two rounds of litigation the
H appellantjhas failed'in establishing his right of easementiand the same r~ght
                K. SIV ARAMAIAH v. RUKMANI AMMAL                        15

of easement is sought to be established in the present suit which would be A
barred by Section 11 of the Code of Civil Procedure. Though all the issues
were tried but the trial court dismissed the appellant's suit solely on the
finding that appellant's suit was barred by res judicata. This finding of the
trial couit has been upheld in First Appeal and also in Second Appeal
preferred by the appellant.                                                   B
       The short question which arises for decision in this appeal is whether
the appellant's suit filed in the year 1994 can be said to be barred by res
judicata. Having heard the learned counsel for the paities, we are satisfied
that the High Court and the two Courts below have committed an eTror of
 law in holding the suit filed by the appellant to be barred by res judicata. C
In the present suit instituted in the year 1994, the appellant shall have to
establish the acquisition of prescription right of easement under Section 15
 of the Indian Easements Act, 1882 by reference to the date of the institution
 of the suit. This issue did not and could not have arisen for decision either
 by way of ground of attack in the 1989 suit filed by the appellant or by D
 way of defence in the 1976 suit filed by the respondent's mother.
 Moreover, the 1976 suit filed by the respondent's mother was dismissed
 insofar as relief of injunction sought for by the respondent's mother against
the appellant is concerned. It was an admitted case of the parties, as has
been noted by the trial court also in its judgment dated 4th August, 1979, E
that the operjngs in the western wall of the appellant had existed and yet
 respondent's mother was held not entitled to the grant of compensation
 because in the opinion of the trial court the remedy of the respondent's
 mother was not to seek an injunction against the appellant but to raise a
wall on her own property so as to block the openings in the wall of the
appellant standing on his own property. By no stretch of imagination the F
judgment dated 4th August, 1979 can constitute res judicata for the
 purpose of the present situation.

      So far as the Original Suit No. 7359/1989 is concerned, the findings
recorded in the judgment therein could have constituted res judicata but G
the fact remains that the Appellate Court permitted the withdrawal of the
suit and once the suit has been permitted to be withdrawn all the
proceedings taken therein including the judgment passed by the trial court
have been wiped out. A judgment given in a suit which has been permitted
to be withdrawn with the libe1ty of filing a fresh suit on the same cause H
    16                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A of action cannot constitute res judicata in a subsequent suit filed pursuant
    to such permission of the Court.

         We are, therefore, of the opinion that the trial court ought to have
    examined the evidence, oral and documentary, on other issues as well and
B   recorded findings thereon.

          The appeal is allowed, the judgment and decree of the trial court, the
    First Appellate Court~ also of the High Court are set aside. The case is
    remanded tQ the trial court for hearing and decision afresh except on the
    issue :of res judicata which as we have already held does not arise for
C   decision. The appeal stands disposed of in the above said terms. The trial
    court shall notice the parties for appearance before it and then appoint a
    date for hearing.

    R.P.                                                   Appeal disposed of.