SATHI Vs. NANU GOPALAN

JUDGEMENT

(1.) Plaintiff in a suit for declaration and consequential injunction is the appellant in the second appeal. The question that arises for consideration in this second appeal is whether the suit is barred by the principle of res judicata inasmuch as the plaintiff had earlier filed O.S. No. 799 of 1976 for injunction against the defendants and others and that suit was dismissed.

(2.) The brief facts leading to the above question are as follows: The plaintiff purchased 1.07 Acres of land as per registered documents dated 4.6.1975. According to the plaintiff, item 3 in the plaint schedule is part of the property purchased by him. There is a Bhajana Madom situated in that property. He purchased the entire property in 1975. It is the further contention of the plaintiff that it was his predecessor - in - interest who constructed the Bhajana Madom and was conducting poojas in it. After the purchase, the plaintiff filed O.S. No. 799 of 1976 before the Munsiff, Cherthala, against defendants 1 to 10 seeking an injunction restraining them from demolishing or re - constructing the Bhajana Madom. The Munsiff Court went into the question whether the 1 cent in which the Bhajana Madom was situated was sold to the plaintiff as per the document in 1975 and whether the tharavad to which the property originally belonged had given it to the public for construction of a Bhajana Madom and there was a permanent dedication of it to the public. The Trial Court raised the following among other issues in that suit.

(3.) The plaintiff had filed an appeal against the judgment in O.S. No. 799 of 1976 (Ext. A14) and the appeal was also dismissed as per Ext. B11 judgment dated 18.3.1981. Thereafter, the plaintiff filed the present suit for declaration of title and recovery of item No. 3, the property where item No. 1 Bhajana Madom is situated, after demolishing item No. 2 Bhajana Madom and injunction restraining the defendants from trespassing into item No. 1. The Trial Court granted a decree as prayed for finding that the earlier suit was only for injunction and the decree did not bar the plaintiffs right to claim title upon plaint schedule items 2 and 3 properties. The Trial Court went into the question of title and on finding that Commissioners report shows that item No. 2 Bhajana Madom forms part of item No. 1 belonging to the plaintiff granted a decree declaring the plaintiffs title and directing defendants to demolish the Bhajana Madom reconstructed by them failing which the plaintiff is entitled to get it removed.