Admissibility of previous judgment not inter parties.

Defendant in O. S. 353 of 1994 on the file of First Additional District Munsif Court, Pondicherry is the appellant herein.

2. Suit filed by predecessor of respondents was one for decree for mandatory injunction against appellant, directing removal of waste materials accumulated in the suit property and for permanent prohibitory injunction restraining appellant from using suit property for storing cow dung and for accumulation of night soil in the suit property.

3. Parties herein will be referred to according to their rank in the suit.

4. Plaintiff and his family members are residing in the suit property from the year 1959 as lessees under Puduvai Saram Sri. Muthuvinayagar Nagamuthu Mariamman Devasthanam, after executing lease agreement dated 17-9-1959. In 1959, rent for suit property was fixed as Rs. 3/-. Subsequently, the rent was enhanced to Rs. 9/- and at present plaintiff is paying rent at the rate of Rs. 20/- per month. As per lease agreement, plaintiff is enjoying suit property to an extent of 30 feet north-south and 90 feet east-west. In the front portion, plaintiff had put up superstructure and the back portion was kept vacant and the same was used by plaintiff's family for ancillary purposes.

5. Defendant, who is residing adjacent to plaintiff's house, is disturbing possession of plaintiff by storing and dumping waste materials in suit property and is creating nuisance. During rainy season, entire vicinity becomes unhygienic and atmosphere also get foul smell. Even though plaintiff requested defendant not to create such nuisance, it is of no avail and hence plaintiff issued lawyer's notice, which was not even replied. Second notice was also issued in 1994 for which also there was no positive result. It is for the above reasons plaintiff came to the Court with above suit.

6. In the written statement filed by appellant it is contended that himself and his forefathers have been living adjacent to suit property belonging to Sri Muthuvinayagar Nagamuthu Mariamman Devasthaam for the past more than 80 years by constructing a brick built house. It is his case that plaintiff is not in possession of entire area of 30 x 90 feet and he has been using the area of 20 x 30 feet from time immemorial. He also denied having stored cow dung and night soil. According to defendant, plaintiff is not entitled to any relief.

7. Trial Court, after raising issues, took oral and documentary evidence. Exs. A1 to A16 were marked on behalf of plaintiff and P.Ws. 1 to 3 were examined. Defendant did not produce any documentary evidence but examined himself as DW 1. Another witness DW 2 was also examined.

8. Trial Court, after discussing entire evidence, oral and documentary, came to the conclusion that plaintiff is in possession of entire property and defendant is creating nuisance. It also came to the conclusion that entire suit property i.e., 30 x 90 feet is in physical possession of plaintiff. Trial Court relied on the Judgments in O.S. 333 of 1988 and O.S. 334 of 1974 as piece of evidence to come to the conclusion that plaintiff is in physical possession. They are Exs. A9 and A15 respectively. Apart from other evidence, taking into consideration the nature and physical features of property and also relying on Ex. A2, trial Court held that the case of plaintiff is true. Consequently, a decree was passed in favour of plaintiff as prayed for.

9. Defendant preferred A. S. 148 of 1996 on the file of Principal Subordinate Judge, Pondicherry. First appellate Court also reappreciated entire evidence and came to the conclusion that no ground is made out to interfere in the finding and conclusion of trial Court. It dismissed the appeal.

10. Concurrent Judgment of both the Courts below is challenged in this second appeal. In the memorandum of appeal, following substantial questions of law have been raised :

(1) Whether the decision rendered by the Lower appellate Court be considered a Judgment satisfying Order 41, Rule 31, Civil Procedure Code especially