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TMI Blog1928 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... s private property. 3. On 14th July 1926, Upendra Datt brought a suit against Rama Mal, for an injunction to restrain him from building a wall in the cul-de-sac so as to close his ( Upendra Datt's) ventilators and water-spouts. 4. On 12th October 1926, Rama Mal instituted a suit against Upendra Datt for an injunction directing him to close the door which he had opened in his house, on to the cul-de-sac, 5. On 19th October 1926, Upendra Datt filed another suit against Rama Mal for a permanent injunction to restrain him from obstructing his right of way through the cul-de-sac by building a kucha bandi. 6. In the first suit instituted by Rama Mal, on 22nd May 1926, against Upendra Datt and the Municipal Committee, Ram Mal stated in Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit of Upendra Datt in connexion with the water spout and ventilators was dismissed. On appeal the learned District Judge was of opinion that there was no justification for the right of easement in connexion with the waterspout, being restricted to rain-water as held by the trial Court. He accepted the appeal and granted Upendra Datt a decree for an injunction against Rama Mal, restraining the latter from constructing his wall so as to obstruct the ventilators and the waterspouts. 8. From the above decrees second appeals have been filed in all the suits excepting the one instituted on 22nd May 1926, which was withdrawn by Rama Mal. There are thus two appeals by Upendra Datt and one by Rama Mal. 9. In the appeals filed by Upendra Datt, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in question whether or not it was instituted prior thereto. But the rulings seem to me to be distinguishable on another ground, viz., that the plaintiff Rama Mal in the present instance withdrew the first suit and did not seek adjudication on merits. 11. The basic principle of res judicata is that there should have been a final adjudication on merits. But when a plaintiff withdraws his suit, there is no necessity for any finding on the issues arising in it and the suit is dismissed without any findings being recorded. In none of the rulings cited before the learned District Judge did the plaintiff withdraw his suit. If a party goes to trial on issues, but fails to produce evidence in respect of the same and his suit is consequently dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 seems to be somewhat in favour of the contention of the learned Counsel, but no reasons have been given in support of the view, that the principle of res judicata applies even in the case of a withdrawal or abandonment of a claim. The facts of that case are also distinguishable in certain respects for the plaintiff therein had apparently definitely stated in the former case that he did not at all claim the property to which the subsequent suit related. I therefore agree with the Courts below that the dismissal of the first suit in the circumstances stated above did not operate as res judicata. 12. The second point urged on behalf of Upendra Datt involves a finding of fact. It was urged that the learned District Judge has not taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decree of the trial Court. The trial Court found that the plaintiff had not been obstructed in the exercise of his right of easement. 14. This finding of fact was not disturbed toy the learned District Judge and must be taken as final. The mere fact that a wall was being constructed would not entitle Upendra Datt to an injunction. He had moreover already obtained a decree in respect of such right of easement relating to the waterspout and ventilators as he possessed and he could execute the decree, if the right were interfered with. It was unnecessary in the circumstances to go into the question whether Upendra Datt was entitled to discharge only rainwater or foul water also. 15. It seems to me that the decree of the trial Court dismissin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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