SUBBU LASHMI Vs. PUSHMAMMAL

JUDGEMENT

(1.) The appellants in this second appeal are the defendants 1 to 4 in O.S.No.93 of 2007 filed by the respondents herein before the Principal District Munsif Court, Tenkasi. The suit was for declaration and permanent injunction. In the said suit, the appellants herein filed counter claim. The first respondent herein as the first plaintiff examined himself as P.W.1 and marked Ex.A1 and Ex.A2. D2 and D3 examined themselves as D.W.1 and D.W.2. Ex.B1 to Ex.B14 were marked on the side of the defendants. The report of the advocate commissioner along with the sketch was marked as Court Ex.1. The learned trial Judge, after a consideration of the evidence on record, by Judgment and Decree dated 30.06.2008, decreed the suit and dismissed the counter claim. Questioning the same, the appellants herein filed A.S.No.46 of 2008 before the Principal Sub Court, Tenkasi. By Judgment and Decree dated 20.03.2009, the appeal was dismissed. The Judgment and Decree passed by the trial Court was confirmed. Challenging the same, this second appeal came to be filed.

(2.) The second appeal was admitted on the following substantial questions of law:-

(3.) When the matter was taken up 'for disposal', the learned counsel appearing for the respondents raised a preliminary objection. He would point out that this is a case, in which, the defendants have filed a counter claim and the counter claim was dismissed. Of-course, there is no need to file an independent first appeal. But then, in a single consolidated appeal, there must be a challenge not only to the decree of the suit but also to the dismissal of the counter claim. In the instant case, though this has been done, in the second appeal, challenge is only in respect of one decree. The learned counsel for the respondents would submit that failure to mount a challenge to the dismissal of the counter claim in the second appeal would operate as res judicata. Therefore, the second appeal will have to be dismissed as non maintainable. He placed reliance on the decision reported in (Vediammal Vs. M.Kandasamy and others, 1997 1 MadLJ 529).