KUZHANTHAIAPPA GOUNDER Vs. NACHIMUTHU

JUDGEMENT

(1.) This second appeal has been filed by the first defendant against the concurrent findings of the Trial Court and the First Appellate Court.

(2.) The 1st respondent is the plaintiff and the appellant is the first defendant / contesting defendant. The suit was filed by the plaintiff for declaration of his title to the suit property and for mandatory injunction to direct the first defendant to remove the encroachment and to restore the fence as it stood before. The case of the plaintiff is that he is the owner of property in S.No118 and S.No.119 is a government Poramboke land used for accessing the well and public burial ground. S.No.118 is situated to the North of S.No.119 and is divided by a fence. The further case of the plaintiff is that though the property in S.No 119 is a government poramboke Road, the same is under the occupation of the first defendant, who encroached a portion of the plaintiff's property in S.No.118 under the guise of occupying S.No 119. The suit was resisted by the first defendant mainly on the ground that the suit is barred by the principle of constructive res judicata under Section 11 of C.P.C as the issue substantially involved in the suit has already been decided in his favour in O.S No.135 of 1997. Though he had also raised the plea of limitation, no issues were framed to decide the same either by the Trial Court or by the First Appellate Court. An advocate commissioner was appointed, who with the help of the surveyor measured the boundary line in S.Nos.118 and 119. Based on the report and evidences, the suit was decreed. The decree of the Trial Court was affirmed by the first appellate court. Aggrieved the first defendant has filed this appeal.

(3.) The following substantial questions of law were framed by this court at the time of admitting the second appeal.