1. This Second Appeal was admitted on 27.7.2007 on the following substantial questions of law :

(a) Whether the plaintiff was entitled to institute the instant suit when the earlier suit filed by the plaintiff was dismissed as withdrawn and the plaintiff had not sought liberty to file a fresh suit and the same was not granted to the plaintiff ?

(b) Whether it can be said, in the facts and circumstances of the case, that the subject matter in this suit and the earlier suit was one and the same and hence the present suit was barred under the provisions of Order 23, Rule 1 of the Code of Civil Procedure ?

2. Heard submissions at the bar. It appears that, by the impugned Judgment and Order passed in Regular Civil Suit No.489 of 1987, the suit was partly decreed and the defendants were directed to hand over peaceful and vacant possession of the suit land bearing Survey No.166/3 to the plaintiff after the trial Court declared that the disputed way is easement of necessity and the plaintiff is entitled to use the said way. Consequently, the defendants were restrained permanently from causing obstruction and interference to the use of disputed way by the plaintiff personally or throug