MEHARRUNNISSA Vs. ESTHER RANI AND ORS.

JUDGEMENT

(1.) THIS second appeal arises out of the Judgment and Decree dated 10.01.2006 in A.S. No. 39 of 2001 on the file of the Additional District and Sessions Judge, Fast Track Court No. III, Chennai -1 reversing the Judgment and Decree dated 19.12.2000 in O.S. No. 5432 of 1986 on the file of the IX Assistant Judge, City Civil Court, Chennai.

(2.) THE appellant as a plaintiff filed a suit for declaration that the two properties, namely, the property belonging to the plaintiff purchased by her on 19.11.1970 was demolished and reconstructed under a duly sanctioned plan and described in Schedule 'A' and the property belonging to the defendant purchased by her under a mortgage cum sale in 1954 in respect of which a decree for possession has been granted in O.S. No. 4847 of 1970 and described in Schedule 'B' and now not in existence are totally and entirely different and they cannot be equated with and identified with one another and also permanent injunction restraining the defendant from dispossessing the plaintiff from 'A' Schedule property under the guise of execution proceedings in O.S. No. 4840 of 1970 stating that the first defendant as a plaintiff filed a suit in O.S. No. 4847 of 1970 for declaration that she is the lessee under the second defendant and recovery of possession from the defendants 2 to 6 therein. In the said suit, the appellant/plaintiff is the 6th defendant. The first defendant would submit that the second defendant in the suit, namely, Durairaj, who is the tenant under her, during the pendency of the suit, has sold the property to the third defendant in the suit. The third defendant sold the same to the fourth defendant and the fourth defendant in turn sold the same to the fifth defendant, from whom, the sixth defendant/the appellant herein has purchased the property. The Trial Court after considering the same has decreed the suit. Against which, the appellant/plaintiff has preferred an appeal and that has been dismissed. Aggrieved by that, second appeal has been preferred by the appellant, which was also dismissed. Then, the first defendant filed Execution Petition and delivery has been ordered. At that time, the plaintiff/appellant has come forward with the present suit stating that the property mentioned in O.S. No. 4847 of 1970 is different from the present suit property. Resisting the same, the respondents/defendants filed individual written statement and prayed for dismissal of the suit.

(3.) THE learned First Appellate Court has considered the argument advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal by holding that the suit is barred by res judicata and in the earlier suit itself it was substantially decided and the suit properties are one and the same and so, the plaintiff is not entitled to any relief. Against the Decree and Judgment of the first Appellate Court, the present second appeal has been preferred by the plaintiff.