D.SAROJA Vs. MEERAN SAHIB

JUDGEMENT

(1.) The defendant in the original suit is the appellant herein. The respondents herein filed the suit O.S.No.834 of 2007 on the file of the District Munsif Court, Kallakurichi for bare injunction against the appellant herein/defendant. The suit was dismissed by the trial Judge (Principal District Munsif, Kallakurichi) against which the respondents herein filed an appeal in A.S.No.18 of 2010 on the file of Sub-Court, Kallakurichi. Learned Subordinate Judge allowed the appeal and decreed the suit as prayed for. The said decree of the appellate Court dated 26.02.2011 is challenged by the appellant herein/defendant in the present second appeal.

(2.) The respondents herein filed the suit for bare injunction on the basis of the plaint averments which are, in brief, as follows:

(3.) The suit was resisted by the appellant herein/defendant contending that the plaint averment made to the effect that the respondents/plaintiffs had left 3 wide lane on the north of the building and 1 wide lane on the south of their building was against the truth. It was also contended that the plaint averment to the effect that they had left a space of 1 feet on the south of their building for the purpose of plastering their southern wall and for laying their drainage pipelines was an utter falsehood. Contending further that the property shown as the suit lane belonged to the appellant / defendant and that the property now shown as suit lane formed part of the property shown as the suit property in an earlier suit, namely O.S.No.120 of 2003 measuring 81 feet x 36 feet in which a perpetual injunction was granted in favour of the appellant herein/defendant, the appellant herein/defendant prayed for the dismissal of the suit. It was also contended by the appellant/defendant in the written statement that since the appellant herein/defendant herein did not make any claim of title in respect of the subject matter of the earlier suit, the present suit was also hit by the bar provided under Order II Rule 2 C.P.C. It was also contended that the suit was barred by res judicata. Based on the above said averments, the appellant/plaintiff prayed for the dismissal of the suit.