Jay Dayal & others vs. Krishan Lal Garg & Arc
Decided it by Hon'ble Supreme Court of India on 06.11.1996.

That in the aforesaid case a question was to be arisen before Hon'ble Supreme Court was that :

The question before hon'ble Supreme Court of India:

• Question: "The question is whether the view taken by the high court is correct in law? And Section 22 of Easement Act would arise only if the question arises for the first time?"
• Dispute between: Jay Dayal & Others (Appellant) and Krishan Lal Garg & Anr. (Respondent/Defendant of Suit)
• Disputed Property: Passage about five feet, situated between the house of appellant and respondent
• Dispute Summary:
  • Respondent had blocked the five feet passage by making the obstruction
  • The appellant had filed the permanent injunction and mandatory injunction Suit No. 1023 of 1961 before the learned trial court against the defendants

• What judgment had passed by trial court: The learned trial court had decreed the suit by his judgment dated 30.03.1994 and by perpetual injunction restraining the defendant from blocking the passage and by mandatory injunction to remove the obstruction to the defendants.
   
• What happen thereafter by the respondent/defendant: They had filed the first appeal before the learned First Appellate Court under Section 96 of C. P. C. and challenging the judgment of learned trial court date 30.03.1964.
   
• What judgment had passed by First Appellate Court: The First Appellate Court had dismissed the first appeal of respondent/defendant vides his judgment dated 10.12.1964 and affirmed the judgment passed by trail court dated 30.03.1964.
   
• What happen thereafter: The appellant had filed the Execution Case No. 2903 of 1965 before the learned trial court under Order XXI rule no. 32 of C. P. C. with prayer to execute the judgment and order dated 30.03.1964 passed by trial court in Suit No. 1023 of 1961.
   
• What had done by court below in Execution Case: The court below allowed the execution case and executing the judgment and order dated 30.03.1964 passed by trial court in suit no. 1023 of 1961, and removed/cleared the obstruction of five feet passage; consequently, the execution case was struck out on 25.02.1966, and same had upheld by appellate by court by dismissing the civil appeal no. 65 of 1966 on 06.03.1967.
   
• What happen thereafter struck out the Execution Case: The respondent/defendants sold their property in favor of third party, and he had further blocked five feet passage by constructing a shop.
   
• After that the appellants, what remedy had chose: The appellant had again filed the Execution Case No. 42 of 1967 under Order XXI rule no. 32 of C. P. C. before the learned court below for further executed the judgment and order dated 30.03.1964 passed by trial court in suit no. 1023 of 1961.
   
• What order had passed by court below in second round execution: The court below had passed the order and had directed, over that ruling the objection of respondent, to remove the obstruction completely and issued injunction not to disobey the mandatory injunction. The learned executing court had padded the conditional judgment and attachment of the property and detention of the respondent in civil prison, if only the obstruction is not removed.
   
• What remedy had taken by respondent after that: Against the order of executing court, the respondent approached by way of appeal to the appellate court and the court of Additional District Judge vides his judgment dated 10.06.1969 dismissed the appeal and confirmed the order of execution court.
   
• What the order passed by Hon'ble single Judge: In execution second appeal, Hon'ble single Judge of high court had remitted the matter on the basis under Section 22 of Easement Act and reverse the finding of court below and formulated a question as to whether the obstruction has caused enjoyment of easementary right. Whereas, the court below committed has error of law in-directing removal of the obstruction.
   
• Hon'ble Supreme Court has taken the view: The Hon'ble Supreme Court has formulated a question is that whether the view taken by the high court is correct in law? As such, he had taken a view that the Section 22 of Easement Act would arise only if the question arises for the first time. The Hon'ble Supreme Court has taken the observation that trial court had allowed the perpetual injunction and mandatory injunction to become final.

Property which is part of the subjection matter in the earlier suit a party cannot and should not by his action, be permitted to drive the decree for another round to adjudication of the right in second suit to be settle afresh. A separate suit is barred under Section 49 of the C.P.C. Under the circumstances, the view of the high court is clearly in error.