AYYAVU ALIAS PALANIVEL GOUNDER Vs. SENGODA GOUNDER

JUDGEMENT

(1.) IN this second appeal at the instance of plaintiffs 1 to 3 in o.s.no.1901 of 1970, district munsifs court, namakkal, the only question that arises for consideration is, whether the lower appellate court was right in its conclusion that by reason of the adjudication in o.s.no. 313 of 1.943, the appellants would be precluded from agitating their claim made in the suit.

(2.) THE suit was for a declaration that THE appellants and respondents 4 and 5 are entitled to THE suit property of an extent of 19 acres and 13 cents in s.no.23/2 in molapalayam village and for a permanent injunction restraining respondents 1 to 3 herein from interfering with THEir possession and enjoyment of THE' same. in THE written statement filed by respondents 1 to 3, THEy pleaded that as a result of THE prior proceedings culminating in s.a.no.243 of 1947, THE appellants would be precluded by THE principle of res judicata from agitating THE question of title as well as injunction. on THE question of THE suit being barred by res judicata THE trial court found on 12.2.1973 that THE principle of res judicata will not operate. against that c.r.p.no.342 of 1973 was filed by THE appellants and it was dismissed with THE observation that it was unnecessary to go into THE correctness or oTHErwise of THE finding of THE court below regarding res judicata and that THE trial court will proceed to dispose of THE oTHEr issues as well and THE aggrieved party can always challenge THE correctness of THE decision, inclusive of THE decision on THE question of res judicata. subsequently, THE trial court considered THE merits of THE claim of THE appellants and ultimately found that THE appellants are entitled to THE reliefs of declaration as well as injunction as prayed for by THEm. however on appeal by respondents 1 and 2 herein, THE lower appellate court found that THE decision in O.S.No.313 of 1943 would operate as res judicata and it is THErefore not necessary to go into THE oTHEr questions relating to THE title put forth by THE appellants as well as THE relief of injunction prayed for by THEm. In that view, THE lower appellate court dismissed THE suit, THE correctness of which is challenged in this second appeal.

(3.) THE adjudication, in my view, does not negative the right of the plaintiffs to the property, but merely declares that their rights will be subject to the right of grazing established by the defendants in O.S.No.313 of 1943 and no more. In orderto enable the defendants in O.S.No.313 of 1943 to exercise that right of customary grazing, the set- ting apart of an area exclusively for that purpose, had also been suggested. That is how the judg- ment of this Court under Ex.B.7 has to be understood and not as negativing the claim of the appellants of their title to the property or accepting the case of the defendants that they had right over the said property for the customary grazing of cattle. Looked at from that point of view, the lower appellate court was in error in holding that the present suit is barred by the principles of res judicata on account of the adjudication under Ex.B.7. That conclusion of the lower appellate court cannot on a proper reading of Ex.B.7 be sustained and since the lower appellate court has not gone into the merits of the controversy between the parties and had proceeded to allow the appeal and dismiss the suit only on the question of res judicata, it becomes necessary to set aside the judgment and decree of the lower appellate court and remit the appeal for reconsideration on merits. Consequently, the second appeal is allowed, Judgment and decree of the lower appellate court are set aside and the appeal is remitted to the court below for reconsideration.