ARUMUGA THEVAR Vs. RAMASAMY THEVAR

JUDGEMENT

(1.) THE defendant in the suit and the respondent in the first appeal is the appellant in the above civil miscellaneous appeal and he has come forward to file the above Civil Miscellaneous Appeal against the judgment and order of remand dated 31.8.1999 made in A.S.No.137 of 1994 by the Court of Principal District Judge, Pudukottai thereby setting aside the judgment and decree dated 27.1.1993 made in O.S.No.32 of 1985 by the Court of District Munsif, Aranthangi and remanding the matter to the trial court for fresh trial to be held.

(2.) ADVERTING to the facts, the respondent herein had filed a suit in O.S.No.32 of 1985 on the file of the Court of District Munsif, Aranthangi praying to declare that he got title to the suit property and for directing the defendant therein to put the plaintiff in possession of the suit property failing which requesting the court to do the same through its process and further praying to grant mesne profits for three years past. The suit property is a landed property in an extent of 2.28 acres classified as ?punja? in the revenue records and falling under S.No.156/12 of Elampallam village, Aranthangi Taluk, Pudukottai District.

(3.) THE appellate court having regard to the pleadings of both parties and having regard to the arguments advanced on either side observed that even though the A.S.No.21 of 1979 preferred against the judgment and decree made in O.S.No.792 of 1974 was dismissed, the appellate court did not decide the question of title of the defendant therein and the second appeal preferred by the plaintiff herein also got dismissed even without notice to the other side at the admission stage itself. THE appellate court further remarking that since there is a finding in O.S.No.792 of 1974 that the defendant therein must prove his title by a separate suit, the defendant therein has filed the present suit in O.S.No.32 of 1985, held that the present suit filed by the plaintiff is not hit by res judicata thereby allowing the appeal preferred by the plaintiff thus setting aside the judgment and decree of the trial court and further remanding the suit back to the trial court and further remanding the suit back to the trial court to decide the same on merit further requiring the parties to appear before the trial court on 1.10.1999.