F.M. Reis, J.

Heard Mr. S.D. Lotlkar, learned Senior Counsel appearing for the appellants and Mr. V. Menezes, learned counsel appearing for the respondents.

2. The above appeal came to be admitted by order dated 04.12.1999 on the following substantial question of law.

"Whether, the Regular Civil Suit No. 14/1988 which was filed for demarcation of the property under Article 2340 of the Portuguese Civil Code, could be said to be barred by res judicata under Section 11, or constructive res judicata of Order 2, Rule 2 of the Civil Procedure Code, on the ground that the earlier suit being Regular Civil Suit No.32/1969, in which the plaintiffs had prayed for recovery of possession of an area of 3 metres x 6 metres, and permanent injunction for demolition of encroachment, came to be dismissed on the ground that the Appellants had not established the demarcation line, between the two properties, and that they had failed to establish possession of the encroached portion of the property."

3. Briefly, the case as stated by the appellants/plaintiffs is that there is a property known as 'Gharacodil Tucdo' or 'Gharbhat' or 'Gharbatlem' situated in the village of Mencurem, in Bicholim Taluka described in the Land Registration Office under No. 1842 and enrolled in the Revenue Office under Nos. 353, 670 and 680 and surveyed under Old Cadastral Survey No.374 and having new Survey Nos. 37/3, 37/4 and 37/12 and 87/11 and 87/18 of the said village.

4. It is further contended that the said property belonged to the ancestors of the appellants and by way of a sale deed dated 19.03.1917, a part of the said property consisting of two plots were sold by the ancestors of the appellants to the ancestors of the respondents. It is further contended that the plots which were sold admeasuring an area of 130 cubits x 40 cubits and 130 cubits x 45 cubits and that the old houses of the respondents were located in the said two plots. It is further their case that the respondents illegally extended their houses and encroached in the remaining property of the appellants on the eastern and southern side of the plots sold. The appellants instituted a suit in the Court of Civil Judge Senior Division, Bicholim being Regular Civil Suit No. 32/69 in which the appellants inter alia prayed for restoration of possession of the encroached area to the extent of 3 metres X 10 metres and also for a mandatory injunction to demolish the unauthorised structure. It is further their case that the said suit came to be dismissed by judgment and decree dated 10.01.1983. It is further their case that the learned Judge came to the conclusion that the appellants had proved that they were owners in possession of the suit property but however, the issue no.1 was decided against the appellants and the issue no.2 in favour of the respondents on the ground that the demarcation of the property between the appellants and the one sold to the respondents was of prime importance and that the appellants had not stated in the plaint that the same had been divided and the suit was not for demarcation under Article 2340 of the Portuguese Civil Code but for the restoration of possession. The learned Judge also found that the appellants have not established the possession of the encroached area while dismissing the suit filed by the appellants. An appeal preferred before the Appellate Court came to be dismissed by the learned District Judge by judgment and decree dated 29.11.1984. Thereafter, in February, 1988 the appellants filed another suit being Regular Civil Suit No. 14/1988 against the respondents inter alila praying for the relief to demarcate the eastern and southern boundary lines of the property belonging to the respondents and also directions to the respondent nos. 1 and 2 to remove any encroachment made in the property of the appellants. The record of rights were also sought to be rectified accordingly. The learned Trial Judge after framing issues, answered the issue nos.3, 5, 6 against