JUDGMENT : 1. This is a defendant’s second appeal wherein they have questioned the judgment and decree dated on 17.01.2004, as rendered by the Additional District Judge/F.T.C.-III, Dehradun, in Civil Appeal No. 66 of 2002 “Sant Lal vs. Bachi Ram and Another”. As a consequent thereto the appeal preferred by the plaintiff-respondent was allowed and suit being Original Suit No. 110 of 1991, Sant Lal vs Bachi Ram and Another which was initially dismissed by the trial court by the judgment dated 20.03.2002, by the Court of Civil Judge (Senior Division)/Additional Sessions Judge/Xth F.T.C., Dehradun, has been decreed. 2. Consequently, the present second appeal, the second appeal at the stage of admission has been admitted on 29.11.2004, on substantial question of law as framed as question no. 2 and 3 to the following effect; (2) whether due to dismissal of plaintiff’s earlier suit, involving declaration of his rights over Khasra No. 122/66, upto the Hon’ble Supreme Court, the plaintiff-respondent cannot claim any mandatory injunction claiming himself to be the owner of the property, on the basis of the sale deed which has been disbelieved in the earlier suit?” Another question on which the appeal has been admitted was, (3) “whether the suit decreed by the Appellate Court is barred by Order 2 Rule 2 as he is fail to claim the relief in the earlier suit decided against him upto the Hon’ble Apex Court”. 3. More or less on considering the facts and arguments of the counsels, the two issues as such narrated above, they are interconnected to one another as, both deals with the impact of the earlier set of proceedings, which has culminated between the parties, on the same subject matter, at least in relation to the plaintiff upto the Apex Court vide its judgment dated 10.02.1995, which has now been reagitated in the present proceedings. 4. Before venturing into the merits of the second appeal and answering the substantial questions posed by the appellant, the case itself has a chequered history of the litigation, which is necessarily required to be chronologically referred herein for better elucidation of facts and case. There had been the following proceedings which was held between the parties by way of original Suit no. 396 of 1983 Sant Lal vs Bhagat Singh and others, which was decreed and declared in favour of plaintiff Sant Lat on 03.12.1986. There had been the following proceedings which was held between the parties by way of original Suit no. 396 of 1983 Sant Lal vs Bhagat Singh and others, which was decreed and declared in favour of plaintiff Sant Lat on 03.12.1986. Being aggrieved against the said judgment defendant preferred First appeal no. 02 of 1986. Jaganath and others vs Sant Lat and others, the Court of 2nd Additional District Judge Dehradun, allowed the appeal under its judgment dated 24.12.1994 and the decree of trial Court of permanent injunction was set aside.4. Before venturing into the merits of the second appeal and answering the substantial questions posed by the appellant, the case itself has a chequered history of the litigation, which is necessarily required to be chronologically referred herein for better elucidation of facts and case. There had been the following proceedings which was held between the parties by way of original Suit no. 396 of 1983 Sant Lal vs Bhagat Singh and others, which was decreed and declared in favour of plaintiff Sant Lat on 03.12.1986. Being aggrieved against the said judgment defendant preferred First appeal no. 02 of 1986. Jaganath and others vs Sant Lat and others, the Court of 2nd Additional District Judge Dehradun, allowed the appeal under its judgment dated 24.12.1994 and the decree of trial Court of permanent injunction was set aside. 5. The Judgment passed in Civil Appeal No. 02 of 1994 Jagannath others vs Sant Lal and others, was challenged by respondent in the present second appeal no. 12 of 1995 Sant Lal and others vs Bhagat Singh which was dismissed by the High Court on 06.01.1995 and thereafter, the matter travelled upto the Hon’ble Apex Court and by filing of an SLP No. 2611 of 1995, Sant Lal vs Bhagat Singh, which too was dismissed on 10.02.1995 as withdrawn. In the aforesaid proceedings, which has culminated upto the Hon’ble Apex Court in which the plaintiff was a party to the proceedings was in relation to the same property, more particularly described as Khasra No. 122/66 having an area of 0.01 Acres situated in Central Home Town, Selakui, District Dehradun as would be apparent from finding an issue no. 1 of judgment 24.12.1994 which stood affirmed by Apex Court hereinafter to be called as a property in dispute in the proceedings. Paragarph no.9 of the said judgment reads as follows: “9. 1 of judgment 24.12.1994 which stood affirmed by Apex Court hereinafter to be called as a property in dispute in the proceedings. Paragarph no.9 of the said judgment reads as follows: “9. The plaintiff/respondent has alleged that he was the owner in possession of the property ABCD shown in the plaint map which he had purchased one Sri Ram Prasad son of Kashmiri Lal vide sale deed dated 15.01.1983 which was registered on 17.01.1983. Prior to purchasing this property the plaintiff was enjoying the possession of a portion of this property as a tenant since the year 1972 and after 15.01.1983 has became absolute owner in peaceful possession of the total property of the suit. The defendant no.1 has denied the plaintiff to be owner in possession of the total property ABCD. He has even denied the very existence of any house of Ram Prasad on the land in suit and thus, therefore, ruled out the questions of the plaintiff being tenant of this property prior purchasing it from Ram Prasad. He has denied that the property in question forms part of Khasra no..122/66 as alleged by the plaintiff. According to him the northern portion of the property in suits forms part of Khasra No.122/72, which was in continuous possession of defendant no.1 as Bhumidhar. On the other hand the defendants no.2 and 3 had alleged that the plaintiff had tried to illegally un reach upon the western portion of the land shown in A B C D which was in possession of defendants no.2 and 3. The property bearing khasra no. 122/66 could never have been sold to the plaintiff, because it was recorded as land of State and Gram Sabha. The western portion of the land shown in A B C D forms part of Khasra no. 122/64 which was owned and was in possession of defendant nos.2 and 3. Thus from a bare reading of the pleadings of the parties it becomes clear that according to the defendants the northern portion of land A B C D forms part of khasra no. 122/72 while the western portion forms part of khasra no.122/64 and according to the plaintiff the total land A B C D formed part of Khasra no. 122/66, therefore, it was his burden to prove and establish that the total land A B C D was part of khasra no. 122/72 while the western portion forms part of khasra no.122/64 and according to the plaintiff the total land A B C D formed part of Khasra no. 122/66, therefore, it was his burden to prove and establish that the total land A B C D was part of khasra no. 122/66 which was duly sold to him, by Ram Prasad. Not only this, he had to prove further that Ram Prasad was having total title over this land A B C D to make a legal and effective sale in favour of the plaintiff. The plaintiff have not got the land in suit surveyed by any survey commissioner or Amin on the basis of Khasra, Khatoni and Naksha bandobast so as to establish his contention that the land in question forms part of Khasra no. 122/66. The plaintiff had filed merely one plant map which too has not been prepared by any qualified engineer or any other competent person. According to the plaintiff PW1 (para 28) the plaint map was prepared by some PWD engineer. When the engineer had enquired about the land, Area Lekhpal was not present, nor any Bandobasti map was provided to him. According to him the concerned engineer had shown that much area in the plaint map which was told by him to the engineer. The statement of PW1 shown that the plaint map was not a well surveyed map and was not an authentic map to establish that the land in question forms part of Khasra no,122/66. The second documentary evidence relied by the plaintiff for establishing that the land in question formed part of Khasra no. 122/66. Paper no. 9A is the sale deed executed by Ram Prasad s/o Kashmiri Lal in favour of the plaintiff whereby 0.10 acre land was sold to the plaintiff Sant Lal. It is specific case of the defendant that this land Khasra no. 122/66 belonged to Gaon Sabha and Ram Prasad could not have sold this land to the plaintiff. It has been further alleged by the defendants that Khasra no. 122/66 of Central Hope Town was recorded as banjar in revenue records and the banjar land always vests in Gaon Sabha and the State of Uttara Pradesh. They have relied on paper no.38 C (Ex B-2) of the Fasli year 1376 and 1387 fasli in which Khasra no. It has been further alleged by the defendants that Khasra no. 122/66 of Central Hope Town was recorded as banjar in revenue records and the banjar land always vests in Gaon Sabha and the State of Uttara Pradesh. They have relied on paper no.38 C (Ex B-2) of the Fasli year 1376 and 1387 fasli in which Khasra no. 122/66 area 0.10 acre has been shown to be recorded in Varg 4 i.e. in unauthorised possession of Birdhari paper no.29A is the notice issued to Birdhari son of Nortu in the year 1967-68 by Tehsildar wherein it is mentioned that he had illegally taken possession of 0.07 acre land of Khasra no. 122/66 paper no. 5701 is the certified copy of judgment of Assistant Collector dated 02.02.1969 which shows that notice issued to Girdhari with regard to 0.03 acre land was taken back but he was evicted from .07 acre land and he was asked to deposit the compensation in the court. This document is a public document and it establishes that khasra no.122/66 was land belonging to Gaon Sabha and not to any private person. After discussing this documentary evidence I take up the oral testimony of the witnesses examined by both the parties. PW1 is the plaintiff Sant Lal who has alleged that Gaon Sabha was not concerned with his land Khasra no.122/66 and no agricultural work was done in his land. He has further stated that several Jamun trees, Ecualyptus trees and Guava trees and other flower trees and one tap were existing in his land and all these trees were standing at the time of execution of sale deed. There is no mention of all these trees of tap in the sale deed paper no. 9 A. According to PW1 he had asked the scribe of sale deed to mention all these trees in the sale deed but he had told that it was abadi land and it was not necessary to wipe to Abadi trees in it. It is surprising that even in the plaint map those trees have not been shown in the land ABCD. According to PW1 he had told the PWD overseer to mention these trees in the plaint map, but he did not think it necessary to mention the name in the plaint map. It is surprising that even in the plaint map those trees have not been shown in the land ABCD. According to PW1 he had told the PWD overseer to mention these trees in the plaint map, but he did not think it necessary to mention the name in the plaint map. PW1 is even found unable to mention the name of PWD Overseer who had prepared the plaint map. When PW1 was cross examined he stated that Ram Prasad had given him the Ford of Patwari which he had filed. However, no such furd has been filed. PW1 admits that he had not inspected the revenue record for ascertaining to do from where this property had come to the possession of Ram Prasad. He even express ignorance to the fact that Birdhari son of Nertu had taken illegal possession of Khasra no. 122/66 in 1375 fasli and proceedings were drawn by Tehsildar against him for adjustment. He admits that Ram Prasad had not given any lasan or najarana in front of him. In para 26 PW1 has admitted that he had not patwa at the time of taking of furd bename also after the execution of sale deed. He is even unable to tell that the furd which he had seen was khasra furd or Khatauni furd. He admits that he had seen three furds and in all the three furds the name of Ram Prasad was not there. To make the matter clear, he even status that he had not seen any such furd in which the name of Ram Prasad had been recorded. The statement of the predecessor or in title of the plaintiff Ram Prasad is all non existing and confusing. According to him he had taken the land sold to the plaintiff from one Chaudhary Rang Bahadhur Singh who was the Zamindari of Hajawale. He had paid Rs.100/- as najrane to the Karinda of Zamindar Ami Chand. He admits that no deed of transfer of the land in question was written. He has merely filed a receipt of Rs.1/- lagaan which exists 1 and is dated 19.05.1992. The Uttar Pradesh Zamindari Abolition and Land Reforms Act came into force in the year 1950 then how this receipt was issued by Chaudhary Rang Bahadur remained unexplained. Besides, in this receipt Ex-1 no. khasra no. He has merely filed a receipt of Rs.1/- lagaan which exists 1 and is dated 19.05.1992. The Uttar Pradesh Zamindari Abolition and Land Reforms Act came into force in the year 1950 then how this receipt was issued by Chaudhary Rang Bahadur remained unexplained. Besides, in this receipt Ex-1 no. khasra no. of the property has been shown and the property mentioned is shown to be Tookan PW2 Ram Prasad admits (in para 18) that Ami Chand had not disclosed khasra number of the land given to him in the year 1946 and he had not enquired the khasra number of the disputed land from any one nor he had tried to enquire about the khasra number of the disputed property. He did not know the khasra number of the disputed property till the date of his dispossession. The khasra number of the land which he sold to Sant Lal was also not known to him. He had not mentioned any khasra number in the sale deed executed in favour of Sant Lal, nor he had told Khasra number of the land sold to the scribe of the Bainame. He even states that he was not knowing as to how the khasra number of the land was mentioned in the sale deed Ex-6. According to him he had not measured the land either at the time of taking it from Ami Chand or Chaudhary Rang Bhadhur or before selling it to the plaintiff, but its area was .10 acres. The witness of sale deed executed in favour of the plaintiff is Radhey Shyam who is the son of Ram Prasad’s brother. PW3 Radhey Shyam is the witness of the sale deed executed in favour of the plaintiff who has stated that he has seen Ram Prasad to be in possession of the land sold for the last 35-40 years. It is surprising he tells the length of property sold by Ram Prasad to Sant Lal, while the seller Ram Prasad himself was unable to tell the dimension of the land sold to the plaintiff. He also admits that Girdhari used to live in SalaKuan who had died now. He was never in possession of the land in suit. The statement of PWD is in contradiction to the documentary evidence filed by the defendants to the fact that Girdhari was recorded illegal occupant of Khasra no. He also admits that Girdhari used to live in SalaKuan who had died now. He was never in possession of the land in suit. The statement of PWD is in contradiction to the documentary evidence filed by the defendants to the fact that Girdhari was recorded illegal occupant of Khasra no. 122/66 and a judgment was also passed for his eviction by Asstt. Collector PW4 Mohd. Hanif is the second witness of the sale deed executed by Ram Prasad in favour of plaintiff Sant Lal. According to him the property in question was with Ram Prasad prior to abolition of Zamindari and since the year 1952 the house of Ram Prasad was there in this property. He denied that Girdhari was ever in possession of this land. He states, himself to be the Pradhan of Gaon since the year 1974 and according to him since the year 1974 and according to him since the year 1974 Girdhari had encroached upon the land of Gram Sabha and he was not aware as to what has happened prior to year 1974. In his cross examination he admits that the case for ejectment of land was filed against him under section 115-C which was decided against him and the son of Jagannath had given testimony against him. Thus it is clear that the testimony of PW4 is interested and he is deliberately hiding the fact that prior to the year 1974 Girdhari son of Nortu was in illegal possession of Khasra plot no.122/66. Thus it can be safely concluded that the plaintiff has failed to prove that his predecessor in title Ram Prasad was having any valid title over the land in suit and, therefore, it was beyond his legal competence to sell this land to the plaintiff. The predecessor in title of the plaintiff was even unaware of the Khasra number which was allegedly sold to the plaintiff. He even failed in examine predecessor of Ram Prasad who was very much alive as per PW1 to prove that the land in question was given on Patta on him. On the other hand it become clear on the basis of Ex-6 that upto 2.2.69 it was one Girdhari who was in possession of Khasra no. 122/66 area .10 acres. He even failed in examine predecessor of Ram Prasad who was very much alive as per PW1 to prove that the land in question was given on Patta on him. On the other hand it become clear on the basis of Ex-6 that upto 2.2.69 it was one Girdhari who was in possession of Khasra no. 122/66 area .10 acres. The plaintiff could have even examined the legal heirs of Girdhari as he had died now to prove that Girdhari had not been in possession of the land in suit, but some other land and litigation was conducted with regard to some other land. However, even no legal representative of Girdhari was examined by the plaintiff. The learned counsel for the plaintiff has placed much reliance on th statements of PWs in which they have alleged that the house situated on the land ABCD belong to Ram Prasad i.e. predecessor in title of the plaintiff. PW1 has specifically stated that in the east of the disputed land the land of Baur Singh and his land fell while in its east the land of Jaganath and Ram Avtar. PW2 Bashir had stated that Sant Lal had purchased the land and house from Ram Prasad and the land on which Sant Lal was living belonged to Ram Prasad for 30 years. However, this statement of PW2 is to be read in context of his examination in chief and the documentary evidence produced by the parties. He has specifically deposed that in the north of the plaintiff’s house a Hodge at a distance of 5-6 feet was there before he gained understanding of the world affairs and there was no passage in the north of plaintiff’s house in between the hedge and Bharat Singh was in possession in the north of the hedge. It is also to be seen that plaintiff or his predecessor in title has not been able to establish as to how this land in question had come in possession of Ram Prasad and how he was legally entitled to effect its transfer to the plaintiff. He further states at page 4 that Sant Lal was only in possession of the house and he was not in possession of the land surrounding it. He further states at page 4 that Sant Lal was only in possession of the house and he was not in possession of the land surrounding it. Similarly PW3 Jagannath defendant has stated that the house of Ram Prasad was in possession of Sant Lal and the title of two rooms of the house was laid in the year 1963. He further admits that he was having no right or possession over the house of Ram Prasad instead he was in possession of the land adjoining to the house of Ram Prasad. Ram Prasad was lying in this house since the year 1962-63. He has even alleged that earlier water was flown in the khali but now every person has filled the kholi and the land which was being described as Khali ki Jamin was purchased by him in which his land khasra was situated. According to him in the Sant Lal’s house was the wall which was constructed during the pendency of the suit PW4 Padam Singh had also denied that there was any khali and in the west of the house of Ram Prasad and defendant no.2 Jagannath was in its possession at about 22-22 ft. In the north of Sanl Lal’s house there was a lodge which was about 25 years old. The statement of PW1 in this context becomes relevant to be considered. According to him some Jamun, Gavua and Eculyptus trees were standing within the hedge but he was not aware as to who had planted these trees. These were planted before him. If these trees would have been planted in his land, those would have been certainly mentioned in the sale deed. It was even unable to tell the width and depth of khala or nalla which shows that the land of khali had been filled long back ago and there was no khali land as alleged by the plaintiff and instead this land belonged to the defendant. Thus the contention of the plaintiff that the land of Bacchi Ram fell after the khali land in his woo is not unattainable. The plaintiff has alleged the road of Haripur to be in the northern of his property. However, in para 33 of his deposition one stated that in the north of his disputed land Toriya has been shown but it was ploughed by Bhagat Singh i.e. the defendant no.1. The plaintiff has alleged the road of Haripur to be in the northern of his property. However, in para 33 of his deposition one stated that in the north of his disputed land Toriya has been shown but it was ploughed by Bhagat Singh i.e. the defendant no.1. In the plaintiff has not been mentioned that the plaintiff had shown Toriya in the north of his property. He admits the existence of Hodge of Besharam 20-22 ft in length in the north of his northern wall, but he denies that it was very old. The fact that there was an old Hodge has been proved by the evidence of PW2 and the other defendant’s witnesses. Thus, as per my discussion of all these evidence, documentary as well as oral, the only thing which can be informed is that the predecessor in title of the plaintiff Ram Prasad was in possession of the house situated in ABCD 1 and for the last several years but as far as the land surrounding it was concerned he was neither in its possession nor he was having any legal title over it. The plaintiff has even failed to prove any legal ownership over the house situated in the land A B C D. Therefore, the findings of the court below on Issue no.1 cannot be said to be passed on proper appreciation of evidence available on record. The plaintiff cannot take any advantage of the inconsistency or lacuna available in the testimony of the defendant’s witnesses Instead it was for the plaintiff to prove that he was the owner and in possession of the property in suit, which he had failed to discharge miserably, therefore, as far as issue no.1 is concerned it is decided in the negative against the plaintiff.” 6. On the culmination of proceeding referred above it has been held out that the property as aforesaid is not a property belonging to the plaintiff, but it was rather the property which was recorded with the Goan Sabha and thus no mandatory rights by way of decree of permanent injunction could ever be claimed or could be granted to the plaintiff over the property in question belonging to the Gaon sabha. 7. There was another set of proceedings. 7. There was another set of proceedings. A reference of which finds place in the amendment which has been made by the defendant in the written statement in compliance of order 05.11.2001 by incorporating the para 14B, which reads as follows: “14ch& ;g fd oknh us [kljk uEcj 122@66 dh ckor mijksDr ds vykok vU; okn tSls ewyokn la[;k 590@95 nkf[ky fd;k tks fujLr djk fn;k x;k rRi'pkr~ 124@95 ;ksftr fd;k ftldh vihy rd [kkfjt gks xbZA blls iwoZ 396@83 ;ksftr fd;k tks ekuuh; mPpre U;k;ky; rd fuf.kZr gks pqdk gS blds mijkUr lUr yky us 79@96 lUr yky cuke jke vorkj nkf[ky fd;k tks fnukad 8-8-2001 dks fuf.kZr gqvk ftlesa oknh lUr yky ds Åij 5000@& :i;s ,oa fo'ks’k O;; lfgr tqekZuk gqvkA bl izdkj oknh dk okn izkaM+ U;k; ds fl)kUr ls ckf/kr gSA” 8. Ultimately, it is also shown and born out from record that there was another Suit No. 79 of 1996 Sant Lal vs Ram Avtar preferred by the plaintiff Sant Lal V/s Ram Avtar and another in relation to the same property in question which too was dismissed on 08.08.2001 with a cost of Rs. 5000/- on Sant Lal. 9. After the culmination of the aforesaid series of proceedings and as it would not be inappropriate to submit that during the pendency of some of the proceedings, the plaintiff-respondent is said to have instituted yet again another suit being Suit No. 110 of 1991, Sant Lal vs Bachi Ram and Another (which is the present suit in question) out of which the present second appeal arises. In the suit thus preferred by the plaintiff. The subject matter in controversy was though it was referred as to Khasra No. 122/66 having an area of 0.01 Acres, lying in Central Home Town Selakui, District Dehradun. In the suit thus preferred by the plaintiff. The subject matter in controversy was though it was referred as to Khasra No. 122/66 having an area of 0.01 Acres, lying in Central Home Town Selakui, District Dehradun. But primarily, its concern was with the passage, which is said to be existing on the northern side of the property as described at foot of the plaint, which according to the plaintiff was public passage and which was leading to Haripur and thus the plaintiff claimed that since the passage was belonging to the Goan Sabha, at least, the defendants to the suit had no right whatsoever, to create any obstruction on the passage by raising any gate or constructing of any wall which according to the plaintiff since it was creating an obstruction on a passage it gave him the cause of action on 31.03.1991 and 01.04.1991, to institute the present suit. According to the plaint averment, the case of the plaintiff was that the property described as property No.126/66 was a property which was purchased by the plaintiff by virtue of purchase made by sale deed dated 15.01.1983 from its predecessor owner, and more particularly the property which has been described in the plaint map by figure C, D, F, and E. The contention of the plaintiff in the suit was that on the western side of the property purchased by the plaintiff lies a nala and thereafter property of Bachi Ram and on the northern side is the kaccha path, described by alphabet ABCD (shadowed red colour) which is the subject matter of the controversy over which the defendants were trying to raise the construction by putting gate and thereby obstruct the movement of the plaintiff and others over the passage in question, which they have been enjoying since the time of their purchase that is with effect from 15.01.1983, and prior to it the passage was being utilized by the predecessor owner of the plaintiff, since 1972 and much before that it was being utilized by one Mr. Ram Prasad the seller of the plaintiff who purchased the property which was recorded as Abadi in 1952. 10. Ram Prasad the seller of the plaintiff who purchased the property which was recorded as Abadi in 1952. 10. The contention of the plaintiff with suit was that since it was a passage which was lying over the land belonging to Goan Sabha, it was a public passage which was being jointly utilized by plaintiff as well as by the defendants, at least, defendants exclusively had no right to raise any obstruction over the passage by putting the gate. It was also the case of the plaintiff that the passage in question happens to be the only passage available to him for his ingress and egress over the property, which was purchased by him on 15.01.1983. The plaintiff’s case was that the cause of action for instituting the suit being Suit No. 110 of 1991, accrued for the first time when the defendants made their attempt to raise a gate on 31.03.1991 but somehow that was avoided. 11. It was the second attempt to raise construction which was made by the defendant on 01.04.1991, when taking advantage of the holidays. The plaintiff had raised a construction of wall of about five feet and ten inches of height and about 13 feet in length it was the second attempt which was made on 01.04.1991 and a deliberate and intentional attempt was made to close the passage which was being jointly used by the plaintiff as well as the defendant. 12. When the defendant despite of there being an injunction order granted by the Trial Court under Order 39 Rule 1 & 2 he had still persistently proceeded to raise the construction, the plaintiff had amended the plaint and thereby brought on record the subsequent facts and actions of defendants of raising the construction by taking advantage of the holidays and the said amendment was allowed by the learned Trial Court on 23.05.1997 and para 7Ka to 7Ga was permitted to be amended (copy of the plaint with memo of second appeal is an un-amended plaint). The plaintiff has also amended the relief sought for to the effect that the construction of the wall, the pillars for the gate which has been made during the pendency of the suit despite of there being an injunction order, the same may be directed to be removed by passing a decree of mandatory injunction to the effect that the obstruction raised may be removed and passage be restored back to its original portion besides a decree of permanent injunction was sought. 13. The defendant after putting in appearance had filed his written statement and in the written statement, the defendant had come out with the case that the passage as alleged by the plaintiff to be existing in the north in fact it is not the passage which was being utilized by the plaintiff for his ingress and egress and further it was the case of the defendant that in fact it was not the only passage which was available to the plaintiff for entering into his property, rather to the contrary the plaintiff’s case too was that the defendant has got a separate passage which was available to him from the main Chakrata road, which he is consistently utilizing for himself. He has further come out with the case that the suit of the plaintiff has been designed in a manner so as to camouflage that the act of encroachment which rather the plaintiff has made over the property described by the figure C D E F in the plaint. 14. The defendants case was that the passage on the north, which is claimed by the plaintiff to have been utilized as a passage by him. As a matter of fact, is the property which defendants claims is the property which was supposed to be exclusively used by defendant only as the defendant, had no other passage for their ingress and egress to their property and further no one else accept the defendant have the right to use the same. 15. Further, the defendant submitted that the story as developed by the plaintiff that the gate was constructed during the pendency of the suit, despite of the temporary injunction order is absolutely false rather gate was pre-existing from the time when the property itself was purchased by the plaintiff as back as on 15.01.1983 and by the defendant by two sale deed that on 15.01.1973 and 19.12.1978. Hence, as a matter of fact the gate existed as it was there, at the time when the purchase was made and perhaps no new installation has been made by the defendant. The defendant’s further case was that since their property is situated in the area which lies at the rear part, they don’t have any other passage and the disputed passage was used by the defendants’ only and the plaintiff had no right over it. After the amendment, in the written statement on 05.11.2001, the defendant too had amended in the written statement raising the additional plea which was pertaining to the impact of the earlier proceedings and the effect of the suit which already stood culminated as against the private persons, as well as 122B proceeding held under Zamindari Abolition Act which was initiated by the gaon sabha against the plaintiff which suit culminated under 122 B (4) F by way Case No. 128 of 2000-2001, which was decided against the plaintiff on 14.09.2011. 16. The suit thus filed on 02.04.1991 proceeded and the parties to the Suit No. 110 of 1991, let their respective evidence to substantiate their cases before the learned trial court. 16. The suit thus filed on 02.04.1991 proceeded and the parties to the Suit No. 110 of 1991, let their respective evidence to substantiate their cases before the learned trial court. On exchange of pleadings the learned trial court had framed as many as 10 issues for example:- on 17.03.1993 primarily, the learned trial court initially framed five issues which quoted as here under:- “1- D;k oknh okLro esa Hkwfe c, d, e, f dk Lokeh ,oa v/;klh gSa\ 2- D;k oknh fookfnr jkLrk luz 1972 ls viuh Hkwfe ij vkus tkus gsrq iz;ksx dj jgk gSA 3- D;k izfroknhx.k fookfnr jkLrs ds Lokeh gSa\ 4- D;k okn dk ewY;kadu de fd;k x;k gS rFkk de U;k;ky; ‘kqYd vnk fd;k x;k gS\ 5- vuqrsk’k\ 5- iqu% vfrfjDr vfHkopuksa ds vk/kkj ij fn- 1-7-96 dks fook|d la- 6 o 7 bl rjg ls fojfpr fd;s x;s A 6- D;k çfroknhx.k us nkSjkus okn fookfnr jkLrs es fnokj dk fuekZ.k djds ,oa ihyj [kM+k djds vojks/k mRiUu fd;k gS ftlds dkj.k ikuh vo:) gksdj oknh dh Hkwfe es vkus yxk gS tSlk fd la’kksf/kr okni= es vfHkdfFkr fd;k x;k gS \ 7- D;k la’kksf/kr okn dk ewY;kadu de fd;k x;k gS ,oa U;k;ky; Qhl de vnk dh xbZ gS \ varr% fnå 7-11-01 dks fufEufyf[kr fook|d fojfpr fd;s x;as 8- D;k ç’uxr lEifÙk laå 122@66 xzke lekt dh lEifRr gS ;fn gka rks izHkko \ 9- D;k oknh dk okn çkax U;k; ds fl)kUr ls ckf/kr gS \ ;fn gka rks izHkko \ 10- D;k ç’uxr ekxZ dks la;qDr ekxZ gS \ ;fn gka rks izHkko \” 17. Initial five issues which were framed by trial court on 17.03.1993 primarily centered around as to whether the plaintiff was the owner in possession of the property and was utilizing, it as a passage since 1972, thereafter, with the amendment of the plaint by the plaintiff, the learned trial court had framed two additional issues on 01.07.1996 while exercising its power under Order 14 Rule 4 and 5 of the Code of Civil Procedure on 01.07.1996 to the effect as to whether during the pendency of the suit whether the plaintiff-defendant has raised the construction of wall and pillar and it made an attempt to obstruct the passage. Lastly, the learned trial court framed further three issues on 07.11.2001. Lastly, the learned trial court framed further three issues on 07.11.2001. These three issues which was framed lastly on 07.11.2001 herein though would have been some relevance as it related to the status of land and its respective right as claimed of. As to whether, the property in question which is the subject matter of the suit that is khasra no.122/66, whether it belongs to the gaon sabha if yes, then excepted right of user and lastly the issue which would be of a grave concerned for resolving the dispute inter-se between the parties is as to whether the passage lying on the northern side of the property in dispute is the common passage or it is a passage which is exclusive vested with a party to the suit. 18. For the time being we will have to shift upon the judicious scrutiny which has been made by the trial court on the various issues of concerned between the parties. What is relevant for consideration is that in the case as build up by the pleadings in the written statement, if the statement is taken into consideration wherein the defendant has in principal admitted the fact that the passage in dispute was being jointly used by the plaintiff as well as by the defendant though he has claimed himself to be the owner of the property. 19. Issue no. 6 as dealt by the learned trial court was to effect as to whether the defendant was making an attempt to obstruct the passage by putting pillars and putting an iron gate, as it has been alleged in the amended pleading of the plaintiff. The learned trial court while dealing with issue no.6 had concluded that the plaintiff in the statement recorded in the proceedings has pleaded that the gate was placed in the 31 March 1991, whereas in the contrary in written statement the defendant has pleaded that when they have purchased the property on 15.01.1973 and 19.12.1978, from Jagannath the precious owner by two independent sale deeds. The gate was pre-existing hence the Appellate Court on a comparative scrutiny, on the issue number 6 has recorded a finding to the effect that the pleading raised by the defendant in the written statement from the few points of existence of gate from the time of purchased was a contradictory plea raised in para 5 rather gate existed when the defendant allegedly purchased the property of the written statement that the gate was constructed in march 1991. It self contradictory plea and thus the Appellate Court held the pleading raised to the contrary with regards to the period when the gate was installed its self contradictory and the Appellate Court held that in view of the evidence which is come on record, it shows that the gate was constructed during the pendency of the suit even after grant of temporary injunction. 20. However, the learned trial court while considering the rival case has dismissed the suit by its judgment dated 20.03.2002. What is relevant to be considered at this stage? Are the two the issue which were framed by the trial court at the later stage on 07.11.2001, that is issue no. 8 and 10. It was to the effect as to whether land in question belonging to gaon sabha and secondly whether it was a public passage. The learned trial Court while recording its finding on issue no. 8 has held that the property in possession of the plaintiff also the part constitutes to be that of the Khasra No. 122/66 and the dispute of passage which is the subject matter of the present proceedings which is shown by the figures D C E F, which is a passage and part of it is also lying in Khasra No. 122/66 which is land of gaon Sabha to come to the conclusion. The learned trial court consider the statement of DW1 that is the statement of Bachi Ram himself who too has admitted in his statement that the passage in question is a passage which is belonging to the gaon sabha land but since, the said passage leads to the defendant home, the defendant had a right to put a gate and block the same because it will not affect any right of the plaintiff. From the analysis of aforesaid assertion made by DW1, it’s his case that according to defendant case there are, two aspects are very clear that the defendant had made an attempt to put the gate and the attempt to put the gate was on a passage belonging to the gaon sabha and lastly, he has admitted and now a established fact that the passage is a property belonging to the gaon sabha over which all the members of the gaon sabha have got a civil right to be enforced. This finding on issue no.6 has attained finality because it is not a subject matter of challenge made by the plaintiff by invoking order 41 Rule 22 of Code of Civil Procedure, while giving it a challenge to the same in the present second appeal, questioning the judgment of the learned trial court based on the said findings. 21. Another important issue which would be of a grave concerned is finding on issue no. 9 as to whether the proceedings would be barred by Section 11 of the Code of Civil Procedure, in view of the previous concluded litigation up to the apex court, which has been referred above in which the plaintiff was a party to the proceedings and issue were same, whether it would created a bar in institution of proceedings at the subsequent cases? The learned trial court while it was dealing with the said issue no. 9, on considering the record had held that the defendant has admitted the fact that the property in question which is subject matter of the suit lying on khasra No. 122/66, which is a property belonging to the gaon sabha, in relation to which the aspect that the property belongs to the gaon sabha has attained finality upto the second appellate stage by the judgment rendered by the Allahabad High Court in Second Appeal No.12 of 1995 Sant Lal vs Bhagat Singh which has already dismissed on 06.01.1995. Hence this issue should not hold us for a longer time that land in dispute in the instant suit it is a land of gaon sabha, as far as the issue pertaining to the res-judicata is concerned the said controversy of the land being of gaon sabha has attained finality, but it always has relation with the adjudication of the earlier subject and issue between the parties. The learned trial court while dealing with issue no. 9 had comparatively studied and referred the judgments rendered in Original Suit no.590 of 1995, O.S no. 396 of 1983, O.S. no.124 of 1995 and O.S. no.79 of 1996 and thereafter, it has recorded a finding that the property which is the passage in question described by figure D C E F, is part of a gaon sabha and the which was land lying in khasra No. 122/66, but still it was not a subject matter of consideration nor in controversy in the aforesaid suits nor the same has been adjudicated upon by any of the judgments as rendered above, thus, the trial court held that the suit would not be barred by the principles of res judicata as it was dealing with altogether a different dispute and an independent consideration of rights of parties. 22. It would be relevant once again to make a mention that even this finding and principles of res judicata on which the defendant has harped upon before the learned trial court has attained finality as no question was independently raised by the plaintiff, by filing cross appeal under Order 41 Rule 22 of the Code of the Civil Procedure before the First Appellate Court. Hence, the finding on issue no. 8 and 9 as recorded by trial court has attained finality qua the parties having in the suit, lastly and most importantly, which is the basis of the entire proceedings is the property described by figure D C E F which is the passage in dispute. The entire dispute between the defendant and plaintiff is over a right of the exclusive use of the passage, and over an exclusive right of ownership over the passage and henceforth, as it has already been settled in almost all the earlier proceedings that at least, either of the parties to the present suit are not the owners of the property as ownership has been settled in the earlier proceedings also holding disputed land to be exclusively belonging to the gaon sabha. If that be so then none of the properties to the suit can claim an exclusive right of ownership of use of the passage in question. If that be so then none of the properties to the suit can claim an exclusive right of ownership of use of the passage in question. If there is no exclusive right vested in any of the parties to the suit, they have got no right under the Specific Relief Act to raise any obstruction over the public passage belonging to the gaon sabha and that to at the cost when it infringes the civil rights of other persons. 23. The issue no.10 was as to whether the passage in dispute is a joint public passage, on which the learned trial court has held that since the plaintiff has got an alternative passage from the main Chakrata road, the inference has been drawn by the learned trial court that since the said passage being utilized by the plaintiff by way of passage. They would not be entitled for a decree of the permanent injunction consequently, based on the above said findings on the issue no.10 was decided against the plaintiff and in favour of defendant no.1 and consequently the learned trial court has held that it was rather the defendant who was exclusively utilizing the passage for himself with others. 24. It is these findings which has been put to challenge by the plaintiff by invoking section 96 of the Code of Civil Procedure by filing a regular civil appeal being Civil Appeal No. 66 of 2002 Sant Lal vs Bachi Ram and Anothers. What is important to be considered by this court in the present second appeallate jurisdiction under Section 100 of the Civil Code Procedure is that before the First Appellate Court? It was the plaintiff who has questioned the dismissal of suit by the learned trial court judgment dated 20.03.2002. The plaintiff/respondent against whom the trial court has decided issue no. 6, 8, 9 & 10 had not questioned the findings recorded on the same and thus the findings which has been recorded therein, which goes to the foundation of the controversy pertaining to the inter se rights in relation to the passage existing on Khasra No. 122/66 belonging to the gaon sabha. 6, 8, 9 & 10 had not questioned the findings recorded on the same and thus the findings which has been recorded therein, which goes to the foundation of the controversy pertaining to the inter se rights in relation to the passage existing on Khasra No. 122/66 belonging to the gaon sabha. It is, that is why the Appellate Court to on considering the rival contentions and while dealing with the issues framed by the learned trial court has held out that the controversy for which the Appellate Court has been called upon to decide was by plaintiff was only on issue nos. 2, 6 and 10. “2. D;k oknh fookfnr jkLrk lu 1972 ls viuh Hkwfe ij vkus tkus gsrq iz;ksx dj jgk gSa+\ 6 D;k izfroknhx.k us nkSjkus okn fookfnr jkLrs esa fnokj dk fuekZ.k djds ,oa ihyj [kMk djds vojks/k mRiUu fd;k gS ftlds dkj.k ikuh vo#) gksdj oknh dh Hkwfe esa vkus yxk gS tSlk fd la”kksf/kr okni= esa vfHkdfFkr fd;k x;k gSa\ 10 D;k iz”uxr ekxZ dks la;qDr ekxZ gS\ ;fn gka rks izHkko\” 25. Issue no.2 on which the learned Appellate Court has ventured was with regards to the length or period from which the plaintiff has been using the passage. The learned trial court while dealing with issue no.2 has held that according to the evidence on record and while dealing with issue no. 10 had concluded and recorded a finding that, the passage is a common passage which has been utilized as a public passage and which has been admitted in the statement recorded by the parties to the proceedings at least also that as per the evidence on record, it is quite clear that the property never exclusively belonged to the defendant/appellant to the second appeal and thus the court has held that the finding which has been arrived at by the learned trial court on issue no. 3 pertaining to the title of the property being vested with the defendant was contrary to the finding of earlier proceedings where it has already been held that the land belongs to gaon sabha and is a public passage, was perverse and had set aside the same by impugned appellate judgment. 3 pertaining to the title of the property being vested with the defendant was contrary to the finding of earlier proceedings where it has already been held that the land belongs to gaon sabha and is a public passage, was perverse and had set aside the same by impugned appellate judgment. Another important aspects which was argued before the First Appellate Court by plaintiff was that the plaintiff-appellant belonging to the suit as a matter of fact has never sought and claimed a mandatory and exclusively right over the passage and there was no one’s claim of mandatory right by the plaintiff/respondent. There was no necessity for the plaintiff to prove that the plaintiff was utilizing the passage from over the last over 20 years as nature of relief in suit was having a blend of easementry right over land of gaon sabha, which was settled by the earlier proceeding that it was a public passage. 26. The case of the plaintiff was that in his entire case before the learned trial court and appellate court, their case was from the view point that since passage was belonging to the gaon sabha they too have got a civil rights as that of any common citizen to use it and it cannot be exclusively defendants right to use the passage for their ingress and egress and the plaintiff supported their version by virtue of the sale deeds executed in his favour in which the western or northern side, which has been separately described shows the existence of passage to be lying therein to be constituting as a part of the description of property which was purchased by the plaintiff. As far as the length for the period for which the plaintiff utilized the passage right from the time of intuition of the proceedings it has been the case of the plaintiff that when they were tenant over the part of the property of Khasra No. 122/66, they have been utilizing the said part as a passage and prior to it its predecessor owner used to utilize it as a passage since 1952, hence there was sufficient evidence on record to show the propriety of the existence of passage and its use by the people at large and it cannot be exclusively utilized by the defendant himself only, prove particularly when it was settled that it was land of gaon sabha. Thus, the Appellate Court while recording its findings in para 15 has rightly come to the conclusion based on the statement of PW4 Ravi Prakash who was an Amin and who submitted the report paper no. 24 x (2) in which he has stated that when he conducted the investigation on 19.04.1991, the passage which was shown in the plaint map, he took the spot inspection and made the map and has depicted the existence of the passage in the northern side of the property of the plaintiff. The report further supported the fact that the so called construction which was made by the defendant it was rather during the pendency of the suit has raised a construction and which as per the paper No. 42sd, shows that it was a new construction and the building material too was lying on the spot which goes to show that it was a new construction and not a construction which pre existed as pleaded by the defendant. The Appellate Court while considering and scrutinizing the oral testimony of the defendant’s statement, which has been recorded to the effect that the plaintiff has got a passage from the main Chakrata road, has not been accepted by the appellate court and rightly so on the premises that the defendant-appellant cannot be permitted to claim having an exclusive right to use passage of gaon sabha, which is beyond his pleadings as defendant himself, in his written statement para 12, he has written that in the sale deed which was executed on 15.01.1973, which was the purchase made by defendant from Jagannath itself shows the existence of kaccha rasta as part of the said passage. There was no other passage existing on the spot. The appellate court while deriving the conclusion has held that once it has been held out on the basis of evidence on record that it was not a private property of the defendant, and it’s a property of the gaon sabha, and it’s a passage belonging to the gaon sabha used by public at large. The appellate court while deriving the conclusion has held that once it has been held out on the basis of evidence on record that it was not a private property of the defendant, and it’s a property of the gaon sabha, and it’s a passage belonging to the gaon sabha used by public at large. In that event none of the parties to the suit have got an exclusive right to claim and exclusive right to use the same, more particularly when the defendant’s own case was that it was the joint property used by the parties hence legally, he could not have created any hindrance by raising any obstruction over public passage not belonging to defendant. Apart from the fact that the plea of principle of res judicata will not apply as it has been already held by courts and nor there were any challenge by the parties to suit that earlier suits was not concerned with the passage in question. Resultantly this Court is of the view that what has been observed above, this Court concludes that the substantial question of law as framed in substantial question quoted herein below in no. 2 which is quoted hereunder : 2. Whether due to dismissal of Plaintiff’s earlier suit, involving declaration of his rights over Khasra No.122/66, upto Hon’ble Supreme Court the Plaintiff/Respondent can not claim any mandatory injunction claiming himself to be owner of the property on this basis of sale deed which has been disbelieved in the earlier suit? 3. Whether the suit decreed by Appellate Court below is barred by Order 2 Rule 2 of C.P.C. as he has failed to claim the relief in earlier suit decided against him upto Hon’ble Supreme Court.? Would not apply in the given set of facts and for the reasons recorded above question no.3, do not involved to be answered in the present second appeal, as none of the principles either of the Section 11 of the Code of Civil Procedure or order 2 Rule 2 is attracted rather to the contrary the issue no. 9 since has attained finality as has not been challenged finality has been given to it. The substantial question of law is not involve in the present second appeal which this Court is required to answer. 27. 9 since has attained finality as has not been challenged finality has been given to it. The substantial question of law is not involve in the present second appeal which this Court is required to answer. 27. The learned counsel for the respondent had submitted that the substantial question of law which has been sought to be determined by the defendant-appellant in the present second appeal does not arise for consideration for the reason being that in the absence of their being a specific case and pleading raised before the courts below and carried for consideration before the first appellate court. No substantial question of law can be raised for the first time in the second appeal traversing the pleading raised by the party to the dispute for which the reliance has been placed on the judgment on the reported 2008 Volume IV SCC 594 Supreme Court Anathula Sudhakar versus P Buchi Reddy para 23, 25 “23. The first appellate court found that the evidence of plaintiffs and their witnesses as to the title of plaintiffs’ vendor Rukminibai was sketchy and inconsistent. It referred to three versions as to how Rukminibai got the property. The first version (as per PW1) was that the suit property belonged to Rukminibai’s father and he had given it to his daughter Rukminibai by way of ’Pasupu Kumkumam’. The second version (as per PW2) was that after the death of Rukminibai’s father, there was an oral partition between K. V. Damodar Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai. But both PW1 and PW2 admitted that they did not make any enquiry with Rukminibai about her title. The third version (as per PW4 - Rukminibai) was that Damodar Rao made an oral gift of the plot in her favour by way of ’Pasupu Kumkumam’ in the year 1961. She admittedthat there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961. 25. The third version (as per PW4 - Rukminibai) was that Damodar Rao made an oral gift of the plot in her favour by way of ’Pasupu Kumkumam’ in the year 1961. She admittedthat there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961. 25. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor \026 executant before the Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to section 41 of Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend that the sales were not valid. They also alleged that defendant was a close relative of Damodar Rao and the sale in favour of defendant was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai’s evidence and other plaintiffs’ witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of TP Act, validity of a oral gift by way of ’pasupu kumkum’ under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.” 28. Consequently, the second appeal fails and is accordingly dismissed and the judgment of the Appellate Court dated 17.01.2004 rendered in Civil Appeal No. 66 of 2002 Sant Lal vs Bachi Ram and Others is confirmed. 29. However, there would be no order as to cost.