JUDGMENT : ( 1. ) THIS is plaintiffs second appeal against the appellate judgment and decree, dated 13-12-1982, passed by the Additional District Judge, Mandsaur in civil Regular Appeal No. 148a of 81, reversing the trial Courts judgment and decree dated 25-7-1979, passed by the Civil Judge, Class-II, Garoth, in COS No. 103a of 60, decreeing the plaintiff/appellants suit for mandatory injunction and restraining them from raising any construction in future. ( 2. ) SHORT facts of the case are that :-The plaintiff/appellant owns a plot of land admeasuring 64 (east-west) x 50 (north-south) in Garoth Town, within its Municipal limits. On the Southern side of this plot, runs the Garoth-Rampura Road. It is an admitted position that this plot of land originally belonged to Garoth Municipality and was purchased by one A. V. Kavishwar, as per Municipal Dakhla, Ex. p/15, dated 11-3-1931. He sold it to Paramanand and from paramanand, it was purchased by Ramgopal who sold it to the present plaintiff/appellant, during pendency of the suit. ( 3. ) ON 11-1-1960, the appellant made an application, Ex. p/6, to the Municipality seeking permission to construct as per proposed plan, Ex. p/2, a house on the said plot. As the Municipal Council failed to take any action thereon, either granting permission or rejecting the application, within one month, as required by law, plaintiff, who could legally start construction as per plan, in fact started construction on 24-6-1960. It was on 16-6-1960, six months after plaintiffs application, Ex. p/6, that the Municipal Council passed a resolution to construct a Passengers Shed "pratikshalaya" on the land, adjoining southern side of plaintiffs plot and lying between the plot and Garoth-Bhanpura Road. A tea-stall was also constructed on a plot admeasuring 12 x 20 on the same land. ( 4. ) PLAINTIFF/appellants case was that, both these constructions not merely obstructed frontage but also deprived him, of his right of access to the highway from any point of his plot. He, therefore, filed a suit for removal of the Passengers Shed. Another suit No. 12a/63, was filed by Paramanand, Plaintiffs predecessor-in-title, for removal of the tea-stall, against one Narsinghpuri and the Nagar Palika (Municipal Council)Garoth. This suit was decreed vide judgment, Ex. He, therefore, filed a suit for removal of the Passengers Shed. Another suit No. 12a/63, was filed by Paramanand, Plaintiffs predecessor-in-title, for removal of the tea-stall, against one Narsinghpuri and the Nagar Palika (Municipal Council)Garoth. This suit was decreed vide judgment, Ex. p/9, on the ground that the stall was constructed on roadside land, forming part of the highway, on which plaintiff had right of access from every point of his plot It was on the basis of this judgment, that the appellant invoked doctrine of res judicata, as according to him the questions involved in the present suit were directly and substantially in issue in suit No. 12a/63, decided on 7-5-1969, vide Judgment, Ex. p/9. As no appeal was preferred against this judgment it has become final. ( 5. ) PLAINTIFF/appellants claim for injunction, was resisted by Municipal Council his right of access to the highway was disputed and denied and it was pleaded that no obstruction was caused by the construction made by the Municipal Council The judgment, Ex. p/9, in COS No. 12a of 63, against Narsinghpuri and Municipal Council could not operate as res judicata in the present suit The trial Court, as stated above, passed a decree in favour of the plaintiff, but lower appellate Court set aside the same. Hence, this second appeal by the plaintiff. ( 6. ) SHRI Sanghi, learned counsel appearing for the appellant, urged that the nature of right claimed by the plaintiff and involved in this appeal is the appellants common-law right to reach the highway from every point of his property. According to him, the owner of property adjoining highway, has a right of access to the highway from all points of boundary of his property and this right cannot be restricted to any particular point. It was on this basis, that he contended that if there was obstruction to this right of access from any point, the appellant could successfully bring an action to remove the obstruction irrespective of the fact, that he had ingress from and egress to the road, from some other point, or place in his property. ( 7. ) THE right claimed by the plaintiff is a well recognised right in law. ( 7. ) THE right claimed by the plaintiff is a well recognised right in law. Winfield in his Law of Tort says, - "the owner of property adjoining the highway has a common law right of access to the highway which is a private right remediable by an action. " (Winfield on Tort, 11 Edn. , pg. 390 ). Similarly, Salmond on the Law of Torts (15th Edn.), pg. 140 writes "every person who occupies land immediately adjoining a highway has a private right of access to the highway from his land vice versa; and any act done without lawful justification whereby the exercise of this private right is obstructed is an actionable wrong. This right of access is a private right of property. . . . . At common law a frontager had the right of entrance and exit from his land on to a highway at any point. . . . . . . This right of access to a highway by the occupier of land abutting upon it must be distinguished from the right of passing alongwith the highway. The former is a private and the latter a public right, and for any infringement of the former an action will lie. " shri Sanghi referred to Halsburys Laws of England (3rd Edn. , Vol. 19), pg. 78 and quoted "an owner of land adjoining a highway is entitled to access to such highway at any point at which his land actually touches it. " ( 8. ) SHRI Sanghi, has supported his contention by referring to the following Indian decisions : AIR 1984 Mad 292 - (K. Sudarsan and Ors. vs. The Commissioner, Corp. of madras and Ors), 1961 MPLJ (SN) 311, 1963 JLJ 831 - (Bashiruddin vs. Ramprasad), AIR 1955sourashtra 63- (Talakchand Dhanji vs. Dhorajimunicipality), AIR 1945 Pat 200- (Distt. Board of Manbhum vs. Bengal Nagpur Rly. Co. and another), AIR 1939 Pat. 682- (Ramran Bijava Prasad Singh vs. Abdul Ghani Khan and Ors.), AIR 1971 Ori 272 - (Ram chand Lakhani vs. S. K. Umar Ali), AIR 1935 Lahore 196- (Municipal Committee, Delhi vs. Mohammad Ibrahim ). ( 9. Board of Manbhum vs. Bengal Nagpur Rly. Co. and another), AIR 1939 Pat. 682- (Ramran Bijava Prasad Singh vs. Abdul Ghani Khan and Ors.), AIR 1971 Ori 272 - (Ram chand Lakhani vs. S. K. Umar Ali), AIR 1935 Lahore 196- (Municipal Committee, Delhi vs. Mohammad Ibrahim ). ( 9. ) IT is not necessary to discuss all these authorities, as Shri Chaphekar, learned counsel for the respondent, has not disputed as a proposition of law this common law right of access to the highway, which the owner of property adjoining the highway has the real dispute in this case, according to Shri Chaphekar, learned Counsel for the respondent is whether as a matter of fact, appellants plot abuts the highway and whether the land lying between appellants plot and the Garoth-Bhanpura Road forms part of the highway and lastly whether the construction made by the respondent, violates appellants right of access to the road. ( 10. ) CERTAIN facts, necessary for deciding the question, whether appellants plot abuts the highway, may now be noted. The plaintiff in para 2, of the plaint has given, boundaries of his plot, showing Garoth-Bhanpura Road, on the southern side, which respondent Municipal Council, has admitted in its written statement. The plot is stated to be abutting the Garoth-Bhanpura Road, in plaint paras 7-A and 9-A, and the construction of Passengers Shed, is alleged to have been made on the road side patari. Admittedly, the Shed has been constructed by the Municipal Council on the land, which belongs to the PWD. This land has been found to be side lands of the Garoth-Bhanpura Road, vide judgment, Ex. p/9, which has been relied upon by the trial Court. Dakhla, Ex. p/15, granted by respondent, Municipal Council on 11-3-1931, itself contains a clear recital to the effect that as the plot was abutting the road a higher rate was charged by the Municipal Council. ( 11. ) SHRI Sanghi, contended that not merely the metalled portion but side-lands lying on both sides of the road, are included in the term highway. He referred to a judgment of the Calcutta High Court as reported in Anukul Chandra Chakravarti and ors. vs. Chairman of the Dacca Distt. ( 11. ) SHRI Sanghi, contended that not merely the metalled portion but side-lands lying on both sides of the road, are included in the term highway. He referred to a judgment of the Calcutta High Court as reported in Anukul Chandra Chakravarti and ors. vs. Chairman of the Dacca Distt. Board, AIR 1928 Cal 485, which holds -"the expression road or highway has been considered in many cases in england and it seems that the interpretation put there is not confined to the portion actually used by the public, but it extends also to side lands. A too narrow meaning cannot be put on the expression public street or road. " in view of the facts noted above, the land lying between the plot and the road, can safely be held to be side land of the Garoth-Bhanpura Road. ( 12. ) SHRI Sanghi, referred to mark d in Ex. p/2, showing the tea-stall, run by narsinghpuri. This place is just adjacent and contiguous to the Passengers Shed. It was on this place that tea-stall was constructed. It runs in continuity with the place shown as a to a on which the Passengers Shed stands as shown in Ex. p/2. As per former judgment, Ex. p/9, dated 7-5-1969, delivered in COS No. 12a/63 the land marked as d has been held to be side-land of Garoth-Bhanpura Road. ( 13. ) SHRI Chaphekar, has disputed actual violation of plaintiffs right of access to the highway in this case. He referred to the map, Ex. D/1, and submitted that as per this map, the plaintiff/appellant has shown the house facing west, no doors are shown on the southern side of the house, proposed to be constructed. It was also submitted that no access was shown or claimed by the plaintiff from the southern side. It was also contended that the vacant land lying adjacent to the side land of the road cannot be said to be forming part of the road. According to him, the first question which would arise for consideration, is whether the open land forms part of the side land of the road ? He contended that after amending and incorporating new amendment as para 7-A to the plaint, the plaintiff has adduced no evidence to prove that the open land forms part of the road or could be said to be side-land of the road. ( 14. He contended that after amending and incorporating new amendment as para 7-A to the plaint, the plaintiff has adduced no evidence to prove that the open land forms part of the road or could be said to be side-land of the road. ( 14. ) SHRI Sanghi, in reply, also referred to Dakhla, Ex. p/15 dated 11-3-1931, issued by the Municipal Council in favour of A. V. Kavishwar, the original title-holder of the plot. This Dakhla was produced before this Court, alongwith an application, dated 11-7-1986 and has now been admitted by the respondent, Municipal Council, vide its reply, dated 16-12-1986. The appellant by an amendment contended that the plot in question, being on the road-side, was given to Shri Kavishwar, on higher rate. The respondent municipal Council came out with a laconic evasive reply to the plaintiffs very specific pleadings regarding Dakhla, Ex. p/15, and the recital contained therein. Application alter application for better particulars, interrogatories with affidavits, were evasively answered by the respondent for reason too obvious. It did not want that the document, ex. p/15, should come on record, as it contained a recital that the plot was adjoining the road. Now that Dakhla, has been admitted by the respondent, Municipality vide its reply dated 16-12-1986, it is clearly established that the plaintiffs plot is situated adjoining the road. In view of the Dakhala and the finding contained in Ex. p/9, the open land on which Passengers Shed, is constructed is held to be land forming part of the side-land of the road. ( 15. ) IT was contended by Shri Sanghi, that road-side lands are prima facie part of the road. He also submitted that it is not necessary that the appellant should have any actual opening on the road. The fact that the appellant had not yet constructed a building and shown a wall without any doors on the southern side would not affect his rights. As an owner of the plot he can claim the same right of access to the public road. He supported his argument by referring to AIR 1938 Pat. 423, which clearly lays down "the fact that a person has put up a wall on his land which abutted on a public road will not deprive him of his right of having access from his land to the road at any place he chooses. He supported his argument by referring to AIR 1938 Pat. 423, which clearly lays down "the fact that a person has put up a wall on his land which abutted on a public road will not deprive him of his right of having access from his land to the road at any place he chooses. " it has been held in Chairman, Distt. Board, Purl and Ors. vs. C. H. Achaya, AIR 1951 On. 124, that road-side lands are prima facie part of the road and vest in the local authority in the same way as the roads, subject to the same kind of use thereof and subject to the same rights and incidents as the road, except in so far as any specific statutory provision provides to the contrary, expressly or by necessary implication. ( 16. ) IN view of the foregoing discussion, the submission made by Shri Chaphekar, that the plaintiff has not shown any doors on the southern side in proposed construction as per map, Ex. p/1, does not make any difference, so far as the plaintiff/appellants right of access to the road is concerned, and the land lying vacant between the plot and the highway is also held to be forming part of the side land of the road in view of the aforesaid Dakhla and judgment, Ex. p/9, recorded by the trial Court. ( 17. ) APART from the fact, that the construction of Passengers Shed, violates plaintiffs right of access to the highway and diminishes its value by bloking the frontage. Shri Sanghi, also submitted that local bodies cannot use Highway or its side lands, in a manner other than the one, provided by law. Side lands of the road vest in the municipality only for such purpose, which the law provides and local bodies can exercise their rights over the road side lands only in accordance with law and for the purposes proved by law not otherwise. The Lahore High Court in Municipal committee, Delhi vs. Mohammad Ibrahim, AIR 1935 Lahore 196, has held -"mere vesting of public highways in the committee does not confer any such powers on it as to permit the commitee to treat it as personal property. " a similar view has been expressed by the Patna High Court in Dwarka Pd. Sinha and ors. vs. Patna City Municipality and another, AIR 1938 Pat. " a similar view has been expressed by the Patna High Court in Dwarka Pd. Sinha and ors. vs. Patna City Municipality and another, AIR 1938 Pat. 423 : - "road-side land vests in and belongs to the Municipality in the same manner as the road itself, and the Municipality can exercise no rights over it except such as are authorised by law and must otherwise leave it as it is. It is not competent to the Municipality to make an income by putting up substantial buildings on the road-side lands through lessees while largely destroying the value of the abutting properties of private owners. " "where a road-side land is only under the control and administration of the Distt. Board under Section 73 the Board holds it for the purpose of maintaining the road and cannot divert it for any other use. The Board cannot lease it for the purpose of putting up permanent building thereon. " See AIR 1945 Patna 200, Distt. Board of Manbhum vs. Bengal Nag. Rly. Co. and Another. The Supreme Court has also held in Municipal board, Manglaour vs. Mahadeoji Maharaj, AIR 1965 SC 1147 , that although public path-way vests in Municipality, the Municipality has no right to put up structures on vacant site, which are not necessary for maintenance or user of it as a pathway. ( 18. ) IN view of the foregoing discussion, the appellant is found entitled to succeed in his claim, as he did before the trial Court on merits of his case. However, the question of res judicata still remains to be considered. The trial Court has held the judgment delivered in Suit No. 12a of 63, filed as Ex. p/9, operates as res judicata, while lower appellate Court, has reversed this finding. According to the learned Judge of the lower appellate Court, what operates as res judicata is the conclusion arrived at, and not the ground for reaching such a conclusion. It may be noted that all the necessary material viz. the plaint, written-statements, issues framed and the judgment delivered in Suit No. 12a/63, have been placed on record as Exs. p/9, p. 10, p/13 and p/14. The respondent, municipality was a party to this suit, instituted by Paramanand, the predecessor-in-title of the plaintiff/appellant It is also not in dispute that no appeal was preferred against the judgment, Ex. the plaint, written-statements, issues framed and the judgment delivered in Suit No. 12a/63, have been placed on record as Exs. p/9, p. 10, p/13 and p/14. The respondent, municipality was a party to this suit, instituted by Paramanand, the predecessor-in-title of the plaintiff/appellant It is also not in dispute that no appeal was preferred against the judgment, Ex. p/9 and as such it has become final. A mere reading of Ex. P/10, the plaint in COS No. 12a of 63, would go to show that the plaintiff had prayed for a mandatory injunction for removal of the tea-stall from the land lying vacant between the plaintiffs plot and Garoth-Bhanpura Road. Ex. p/13, is the written-statement filed by the Garoth-Municipality and Ex. p/14, is the certified copy of the issues framed by the trial Court in that suit, while Ex. p/9, is the judgment. A perusal on these documents leaves no manner of doubt that the issues involved in that suit were fundamentally and substantially the same as are involved in the present case. 18-A. It was pointed out by Shri Chaphekar, learned counsel for the respondents, that the trial Court in para 15 of its judgment, Ex. p/9 has observed that the judgment would not operate as res judicata to the present suit The lower appellate Court has held that it is only the conclusion in the former judgment had not the grounds for reaching such conclusion which would operate as res judicata. Subject matter of the suit being different, the learned Judge concluded that Ex. p/9, would not operate as res judicata. Lower appellate Court also appears to have been impressed by the observation made by the trial Court in paragraph 15 of its judgment, Ex. p/9. ( 19. ) MERE fact that in COS No. 12a of 63, the subject matter was a tea stall, while in the present suit it is Passengers Shed, would not make material difference so far as the right claimed by the plaintiff is concerned, both cause obstruction and interfere with the plaintiffs right of access to the Highway. Fundamental issue is the same. Fundamental issue is the same. Mere observation by the trial Court that its judgment would not operate as res judicata in another connected matter, by itself is not sufficient to arrest the effect and operation of the judgment It should also not be overlooked in this connection, that the present suit was still pending before the same Court, while delivering judgment, Ex. p. 9. ( 20. ) LOWER Appellate Court is not correct in its reasoning that it is only the conclusion in the former judgment, which operates as res judicata and not the reasons or grounds on which the conclusion is based. This Court in Zingu Deorao vs. Mahadeo, air 1948 Nag. 358, has held as follows :- "the doctrine of res judicata applies not only to the actual decision in the case but also to the facts and grounds for that judgment pleaded by the parties. Anything which is admitted and which is fundamental to the decision of the earlier suit is also part of the res judicata created by the judgment. " ( 21. ) IN order to consider whether a previous decision is res judicata or not, the substantial effect of what has been decided in the case should be considered. Rule of res judicata does not depend upon the identity of the subject matter but it depends on the identity of issues. See Nandlal Roy vs. Pramathanath Roy, AIR 1933 Cal. 222. The supreme Court in Smt. Rajlaxmi Dasi vs. Vanmali Sen, AIR 1953 SC 33 , has laid down that the test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. ( 22. ) IN view of foregoing discussion, finding recorded by the lower appellate court on the question of res judicata cannot be allowed to stand and it is accordingly set aside and it is held that Ex. p/9, operates as res judicata to the present suit. ( 23. ) FOR the foregoing reasons, this appeal deserves to be allowed and is accordingly allowed with costs. Counsels fee as per schedule, if certified. The judgment and decree of the lower appellate Court are set aside and that of the trial Court restored. Appeal allowed.