M PERUMAL Vs. SONAIYA SERVAI

JUDGEMENT

(1.) THIS Second Appeal arises out of the Judgment and Decree made in A. S. No. 33/1996 (dt. 16. 7. 1996) on the file of the District Court, sivagangai, reversing the Judgment and Decree made in O. S. No. 66/1993 on the file of the District Munsif Court, manamadurai, dated 25. 01. 1996. The Defendants are the Appellants. For convenience, the parties are referred in their original rank in the suit.

(2.) THE Plaintiff/respondent has filed the suit O. S. No. 66 /1993 for declaration, recovery of possession, after demolishing the thatched shed put up in the Suit Property and in the alternative prayed for Mandatory injunction to demolish the thatched shed put up in the Suit Property. D-2 is the wife of D-1.

(3.) EMPHASIZING that the Defendants are barred by resjudicata in view of the previous proceedings, the Plaintiff has preferred the appeal A. S. No. 33/1996. After extracting Section 11 and Explanation 7, the lower Court found that the Judgment of the District Munsif Court Paramakudi in o. S. No. 327/1960 and the Judgment of the First Appellate Court in A. S. No. 232/1964 was binding on the first Defendant. The Lower Appellate Court was of the view that the Plaintiff and his father had filed Execution Petition in e. A. No. 278/1966 and got delivery of the same through the proceedings in e. A. No. 278/1966 and that the Defendants are bound by the same. The lower appellate Court accepted the contention of the Plaintiffs that though the first defendant was not a party to the earlier proceedings, the same was binding on him, since his brother Vellaikoothan was a party in the said suit and that he was a Defendant in his capacity as Kartha of the family. Finding that the first defendant is bound by the earlier proceedings, O. S. No. 327/1960 and A. S. No. 332/ 1964, the lower Appellate Court found that D-1 is precluded from putting forth the defence that his entitlement to the property and his claim is barred by resjudicata. On those findings, reversing the Judgment of the trial Court, the first Appellate Court allowed the appeal and thereby decreeing the Plaintiff's suit.