P.V. FRANCIS, S/O. VARGHESE, AGED 53, PANDICHERRY VEETTIL, CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK Vs. P.V. VARGHESE, S/O. VARGHESE, AGED 62, PANDICHERRY HOUSE, VEROOR MURI, CHETHIPUZHA VILLAGE, CHANGANACHERRY, REP. BY POWER OF ATTORNEY, P.V. THOMAS, AGED 65, PANDICHERRY HOUSE, VEROOR, MURI, CHETHIPUZHA VILLAGE, CHANGANACHERRY

JUDGEMENT

(1.) The suit from which this appeal arises was in respect of two items of immovable properties. On the plaint schedule first item land there is a building; on the second item land there is no building. The first respondent has been residing in the United States of America since 1973. He purchased the plaint schedule properties by sale deed No. 2897/1979. As he was residing and working abroad the property was being managed by his father till his death in 1983 and thereafter, by one of his brothers, who is his power of attorney. On 12.1.1985 the appellant, who is another brother, broke into the building, reduced it into his possession and started doing some business in it. He unauthorisedly extended the building making some constructions and leased out that portion to the second respondent. On 11.6.1993 the appellant attempted to reduce the second item land also into his possession. On these allegations the first respondent instituted O.S. No.300 of 1993 in Munsiff Court, Changanacherry for a mandatory injunction directing the appellant and the second respondent to vacate the building on the first item land and to pay mesne profits, and also directing the appellant to demolish and remove the extended portion of the building and for a perpetual injunction prohibiting him from making new construction in the plaint schedule first item property and trespassing into the plaint schedule second item land. The suit was partly allowed. The prayer for perpetual injunction prohibiting the appellant from making construction in the first item property was granted. The prayers for mandatory injunction and mesne profits in respect of the first item were disallowed on the ground that the first respondent should have prayed for recovery of possession of the plaint schedule item No.1. The prayer for prohibitory injunction in respect of the second item land also was rejected on the basis of the finding that the appellant had already reduced it into his possession. Thereafter, the first respondent filed the present suit. His title to, and dispossession by the appellant is the foundation for claiming the relief in respect of item No.1 property. With regard to item No.2 land the allegation is that the appellant trespassed into item No.2 after the institution of O.S. No.300 of 1993 as the respondent failed to get a temporary injunction restraining trespass. The prayer in the present suit is to allow the first respondent to recover possession of the first item property from the appellant and the second respondent and to issue a mandatory injunction directing the appellant to restore the first item building to its original condition and to recover possession of the second item property from the appellant. There is also a prayer for recovery of Rs. 3000.00 from the appellant as mesne profits for the three years prior to the institution of the suit. The appellant inter alia contended that the suit was barred by the provisions in section 11 and Order 2, Rule 2 CPC. For the purpose of this appeal the other contentions are not relevant.

(2.) The trial court took the view that the suit is barred by the provisions in Order 2, Rule 2 CPC, but not by section 11. Accordingly, it dismissed the suit. In the appeal filed by the first respondent/plaintiff the learned district judge held that so far as the first item property is concerned though the cause of action for the two suits is identical, the present suit is not barred by the principle of res judicata embodied in Sec. 11 C.P.C, the reason for which is stated in paragraph 14:

(3.) The questions of law formulated by this court relate to the bar pleaded by the appellant on the basis of the provisions in Sec. 11 and Order 2, Rule 2 C.P.C.