IQBAL MOHAMMED BIJILI Vs. K ARUMUGAM

JUDGEMENT

(1.) THE second appeal was admitted on 13.12.2004 on the following substantial questions of Law: 1.Whether the findings of the courts below are vitiated by its failure to consider the absence of any evidence on the side of the respondents 1 and 2 regarding possession except the recitals under Exs.A-3 and A-4 which came to be registered pursuant to the judgement and decree passed in O.S.No.358 and 360 of 1991 without notice to the appellant" 2. Whether the courts below are right in not considering the question on the indisputable fact that the suit is barred under Order 2 Rule 2 of Civil Procedure Code especially when the cause of action in the present suit is the same as that of in the previous suits in O.S.No.358 and 360 of 1991"

(2.) WHEN the application for interim order was moved, both the counsel submitted that they would argue the main second appeal itself and therefore the second appeal was heard.

(3.) THE learned counsel for the respondents 1 and 2 would submit that there was no question of suppression, since as far as the suit for injunction is concerned, what is relevant is the date of possession and the date of interference of the possession and therefore, it is not necessary to refer to the earlier cases. However, it is submitted that immediately after the registration, mutation was effected. He further submitted that the courts below concurred over this proof of possession on the date of suit, for which there is documentary evidence, and the suit was rightly decreed.