P. SELVI Vs. K. ARUMUGHAM

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Subordinate Judge, Rasipuram dated 29.01.2011 made in I.A. No. 489/2010 in O.S. No. 123/2010 on the file of Sub Court, Rasipuram.

(2.) THE above said suit has been filed by the respondents 1 to 3 herein against the revision petitioners for partition in respect of 76 1/2 cents of land comprised in S. No. 133/3 of Minnakkal Agraharam Village, Rasipuram Taluk, Namakkal District into two equal shares and allot one such share to the plaintiffs and also for a permanent injunction restraining the petitioners herein from in any way preventing the respondents herein from using the alleged cart track marked as ABCD in the plaint plan to reach their share in the above said property comprised in S. No. 133/3.

(3.) IT is the further contention of the petitioners that only in order to overcome the difficulty caused by such a decree, they have chosen to file the present suit for partition of S. No. 133/3 and in the guise of claiming partition of the said property, they have also made an attempt to give a resurrection to their plea regarding the cart track, which was negatived by the District Munsif Court, Rasipuram in the former suit in O.S. No. 161/2008. Besides filing the suit for partition in respect of S. No. 133/3 and injunction in respect of the alleged cart track shown as ABCD in the plaint plan, the respondents herein also chose to file I.A. No. 489/2010 for appointment of a Commissioner to note down the physical features of the property and also to verify whether the alleged cart track is in existence on ground? Such an attempt was also resisted by the petitioners herein stating that the suit in respect of the second prayer is not maintainable, as it is barred by the principle of res judicata and that the respondents besides making a second attempt to claim a right to such a cart track want to create evidence by appointment of the Commissioner.