KRISHNA IYER Vs. KUNNATH CHELAN AVVOKKAR

JUDGEMENT

(1.) This is an appeal by the plaintiff who was non suited at the lower appellate stage. While admitting the Second Appeal this Court formulated two substantial questions of law. Those are as follows:

(2.) It is not in dispute before me that parties to the present suit were also parties to O. S. 114/1975 which reached up to this Court in CRP 2942/78. That was a suit for damages wherein defendant No. 2 in the said suit who is none other than the defendant in the present suit contended that the property out of which damages were claimed had been owned by him based on a title. The damages were sought for by the plaintiffs on the ground that the defendants therein had unauthorisedly plucked cashew nuts from that property. The plaintiffs set up a case of absolute possession and ownership; whereas the defendants set up the case based on title. The suit was decreed. The present defendant took up the matter in appeal as A. S. 198/76. That appeal was allowed. In that appeal, according to that Court, the issue cropped up was also as follows:

(3.) The property thus found to be in the enjoyment, possession and ownership of the 2nd defendant in that suit, who is the defendant in the present suit, is the subject matter of the present suit for recovery of possession. Thus there is no dispute that the subject matter of the present suit was also part of the subject matter of the earlier suit and the title to that property was also in issue between the parties, in the earlier suit.