K. SIVARAMAIAH versus RUKMANI AMMAL

Citation: [2003] SUPP. 6 S.C.R. 12 · Decided: 20-11-2003 · Supreme Court of India · Bench: R.C. LAHOTI, ASHOK BHAN · Disposal: Disposed off

Judgment (excerpt)

A 
K. SIV ARAMAIAH 
v. 
RUKMANI AMMAL 
NOVEMBER 20, 2003 
B 
[R.C. LAHOTJ AND ASHOK BHAN, JJ.) 
Code of Civil Procedure, 1908 : 
S. J J-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alleging acquisition of prescriptive rights-Suit withdrawn at appellate 
D 
stage-Third suit between the parties filed by defendant, in first suit 
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 of prescriptive right of easement 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 of that 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. J 5. 
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Res judicata-Suit withdrawn at appellate stage with permission of 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 
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f 
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 
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

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