Tests to be applied for plea of bar of suits.

This second appeal is filed by the defendant in O.S. No. 552 of 1976 on the file of the District Munsif, Erode, challenging the legality and correctness of the judgement and decree of the District Judge, Erode, passed in A.S. No. 106 of 1983.

2. The facts of the case are briefly as follows :-

The respondent herein filed the suit O.S. No. 552 of 1976, on the file of the District Munsif Erode, against the appellant herein for possession of the suit property, payment of mesne profits and for costs. In the plaint the respondent herein alleged that her absolute title to the suit property has been declared by the Court in O.S. No. 883 of 1972, on the file of the District Munsif, Erode, in which the appellant herein was the defendant. The said suit was filed by the respondent for declaration of her title and for a permanent injunction restraining the appellant from interfering with her peaceful possession and the Court declared the rights of the respondent but negatived the claim of injunction since the appellant was found to be in possession of the property for the past two years before the judgement dt. 26-2-1974. There was an appeal against the said judgement in A.S. No. 70 of 1974 preferred by the appellant herein and the said appeal was dismissed. There was no second appeal against the same. It is alleged in the plaint in O.S. 552 of 1976 that the appellant had been in forcible possession of the suit property after dispossessing the respondent in or about 20-1-1972. The cause of action for the said suit, is said to have arisen on 20-1-1972 when the respondent was dispossessed.

3. In the written statement the appellant/defendant refuted the allegation that the respondent was dispossessed on 20-1-1972. It is also contended that the appellant is the absolute owner of the suit property and that the respondent is not entitled to any right in respect of the suit property as per the sale deed, dt. 3-8-1964. The appellant also contended that a second appeal had been filed against the judgement of the Subordinate Judge in A.S. No. 70 of 1974 and the same is pending. A contention also had been raised under O.2, R.2, C.P.C. that the suit is not maintainable.

4. The trial Court relying upon the previous judgement in O.S. No. 883 of 1972 came to the conclusion that the respondent herein is entitled to possession and negatived the contention of the appellant herein regarding the maintainability of the suit. As against the said judgement the present appellant filed A.S. No. 106 of 1983 on the file of the District Judge, Erode, and the learned District Judge also after considering the facts of the case dismissed the same. As against the said judgement of the learned District Judge, this second appeal is filed.

5. Natarajan J., as he then was, admitted the second appeal for consideration of the following question of law :-

"Whether the Courts below have committed an error in law in not applying the ratio contained in the decision reported in 1911 (34) ILR(Mad) 97 and decreeing the suit ?" *

6. Before entering into a discussion on the question of law certain facts will have to be stated. The earlier suit for declaration and injunction was filed by the respondent, in O.S. No. 883 of 1972 on 25-4-1972. In the said suit a decree was passed declaring the respondent's title to the suit property, but the suit for injunction was dismissed on the ground that when the respondent herein was in the witness box she had admitted that the appellant had trespassed into the suit property on the date of the suit and hence the respondent is not in possession of the suit property and on that basis the relief of injunction was negatived. The said decision had become final. The only question that is urged in this second appeal is whether both the Courts below are right in not upholding the contention of the appellant that the relief of possession is one that could have been asked by the respondent in the earlier suit and she having not asked for the same is pre