CHERU Vs. CHOYIKUTTY

JUDGEMENT

(1.) The defendants in O. S. No. 444 of 1975 which is a suit for recovery of possession on the strength of title are the appellants. The suit was decreed by both the courts. The defendants' contention that the suit was barred by reason of res judicata was rejected by the lower appellate court. They had contended before that court that the plaintiff had earlier instituted O. S. No. 349 of 1973 against the present defendants for injunction in which a specific issue on title was raised by the court on the pleadings of the parties. That issue was found against the plaintiff. The court found that the plaintiff was not entitled to restrain the defendants from plucking coconuts from trees standing on the property in dispute. That decree became final.

(2.) The dispute relates to the boundary lying between the adjoining properties respectively owned and possessed by the plaintiff and the defendants. There is no dispute as regards the possession or ownership of either property except in regard to the narrow strip separating the two properties and on which stand four coconut trees. The defendants put up a fence enclosing the boundary and separating it from the property of the plaintiff.

(3.) One of the main contentions of the defendants before the lower appellate court was that the present suit was barred by res judicata by reason of the decree in O. S. No. 349 of 1973. No such contention had, however, been taken in the Trial Court. The lower appellate court rejected the contention stating that the issue on title decided in the earlier suit for injunction was unnecessary for the final determination of that suit, for the only issue, according to the court, which wag necessary for consideration was as regards the rival claim of possession.