RAMASAMY Vs. MARIAPPAN

JUDGEMENT

(1.) THIS second appeal is focussed by the original defendant, animadverting upon the judgment and decree dated 30.4.2007 passed in A.S.No.11 of 2007 by the Additional District Court (FTC -IV), Bhavani, confirming the judgment of the trial Court, namely, the II Additional District Munsif, Bhavani District, in O.S.No.331 of 2002, which was a suit for permanent injunction, so as to restrain the defendant from interfering with the peaceful possession and enjoyment of the suit pathway by the plaintiff. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

(2.) BROADLY but briefly, narratively but precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, could be portrayed thus in view of the fact that both the Courts below elaborately detailed and delineated the relevant facts in their respective judgments. The plaintiff earlier filed the suit O.S.No.460 of 1999 before the II Additional District Munsif, Bhavani, seeking declaration of his title and permanent injunction relating to two items of properties, one to an extent of 48 cents and another to an extent of 1 cents, which includes the present suit property also. The said suit was dismissed. However, the fact remains that in the earlier suit, the written statement filed by the same defendant herein, marked as Ex.A.6 in this suit, would demonstrate and evidence, express and expatiate in unmistakable terms, as correctly pointed out by the lower Court in its judgment, that the defendant candidly and categorically admitted the existence of common path way in the suit property herein. Ultimately, the earlier suit was dismissed on the ground that the prayer of the plaintiff for declaration of title over the said property and for injunction was untenable. Per contra, the present suit is for obtaining injunction so as to restrain the defendant from interfering with the plaintiff's right to use the suit common pathway, found described in the schedule of the plaint. As such, the lower Court, adverting to various other facts and evidence held that the suit was not barred by res judicata and the appellate Court also confirmed the order of the lower Court. Being disconcerted and aggrieved by the judgments of both the Courts below, the defendant in the grounds of second appeal suggested the following substantial questions of law: "A. Whether the judgments and decrees of the Courts below are vitiated by non framing of proper and relevant issues having regard to the nature of controversy between the parties. By not framing relevant issues the Courts below have posed wrong and irrelevant issues for consideration affecting their judgment. B. Whether the judgments and decrees of the Courts below are vitiated on account of non consideration of the fact that the present suit in O.S.No.331 of 2002 was barred by res judicata inasmuch as in the earlier suit in O.S.No.640 of 1999 for the relief of declaration and permanent injunction over the same suit property in S.No.683/2 had been dismissed by judgment and decree dated 21.1.2002. C. Whether the judgment and decree of the Courts below are vitiated by their throwing the burden of proof wrongly on the defendant ignoring the basic principles of law that it was the plaintiff who had to prove and substantiate his case. D. Whether the judgment and decrees of the Courts below are vitiated by their drawing of unnecessary and unwarranted of inference/assumptions from the evidence of the parties including the report of the Advocate Commissioner."

(3.) A bare poring over and perusal of the judgment of the lower Court, as found enclosed in the typed set of papers, would demonstrate and display that as many as four issues were framed by the trial Court as under: (i) Whether the plaintiff is entitled for permanent injunction; (ii) Whether the suit was bad for want of the prayer for declaration of title; (iii) Whether there is no cause of action for filing the suit; and (iv) To what relief is the plaintiff entitled to?