KUMARAN Vs. RAMAN

JUDGEMENT

(1.) Plaintiff is the appellant. He filed the suit for recovery of possession. The Trial Court on a finding on the preliminary issue with regard to the maintainability of the suit held that the suit is not maintainable as it is barred by res judicata. That finding has been confirmed by the lower appellate Court.

(2.) The suit is filed for declaration of plaintiffs title and recovery of possession of plaint B schedule property. Plaintiff had earlier filed O.S. 396 of 1966 for injunction and damages. That suit was dismissed and that decision was confirmed by the lower appellate Court. Ext. B-2 is the judgment in O.S. 396 of 1966 of the Trial Court and Ext. B-3 is the judgment in the appeal. Contention of the appellant's counsel is that as O.S. 3% of 1966 was one for injunction only passing reference to the title will not operate as res judicata in the subsequently filed suit. Counsel for the respondent submitted that in O.S. 3% of 1966 there was specific issue with regard to the title of the plaintiff and as the Court has considered it and has come to a finding it cannot be held that that finding would not operate as res judicata.

(3.) In O.S. 396 of 1966 there was a specific issue with regard to plaintiffs title to the property. Court fee was paid under S.27(a)(ii) of the Court Fees Act. Plaintiff adduced evidence to substantiate his case of title to the property. In view of the denial of the title by the defendant, the matter required to be considered on threadbare analysis of evidence. The Munsiff held in O.S. 396 of 1966 that the plaintiff has failed to prove his title. In A.S. 35 of 1972 (Ext. B-3 judgment) the learned Additional District Judge held that the Munsiff is correct in coming to the conclusion that the plaintiff failed to prove his title and possession of the disputed property. In para 10 of Ext. B-3 judgment the Additional District Judge considered the evidence and came to the conclusion that the finding of the Munsiff that the plaintiff failed to prove his title and possession of the property is correct.