Filing one appeal instead of two cannot be a ground to set aside lower appellant courts judgment.

This second appeal is by the plaintiffs in O.S.Nos.223 and 230 of 1990, on the file of District Munsif’s Court, Karaikal.

2. Both the above suits were jointly tried and a common judgment was pronounced by the District Munsif on 112. 1992.

3. O.S.No.223 of 1990 is a suit for permanent prohibitory injunction restraining the defendants from in any manner interfering with the peaceful possession and enjoyment of the suit property by them on the allegation that the property is situated in Resur-vey No. 146/11, in T.R.Pattanam. Resurvey No. 146/ 12 is a temple tank belonging to the defendant-Temple and there is a live fence east to west separating the properties, namely, the tank of the defendant-Temple and the land of the plaintiffs. The fence has been in existence for several decades and there are also several trees. The property in question is being looked after by the second plaintiff and plaintiffs are in possession of the suit property as owners. It is their case that they purchased this property as per sale deed dated 111. 1954 from one Govinda Pillai and his wife Govindammal. It is seen that their predecessors were also in possession of the said property, and it is their case that possession was with them for not less than 100 years. It is their further case that they used to cut and remove portia trees situated within the schedule property, as their mode of employment. When some trees were cut prior to the institution of the suit, defendant-Temple claimed that those trees belonged to it and plaintiffs were threatened with criminal prosecution. In order to avoid a criminal charge, first plaintiff was compelled to pay a sum of Rs.3,000 to the Special Officer of the temple. According to the plaintiffs, such payment was made only due to threats, even though the trees absolutely belong to them. It is for these reasons, O.S.No.223 of 1990 was filed for injunction, and the subsequent suit O.S.No.230 of 1990 was filed for return of the amount which the first plaintiff paid under threats.

4. The temple filed written statement and contested the claim of the plaintiffs. It is their case that the schedule property is a part of their property, and it is mostly a boundary separating the plaintiff’s and defendant’s property. It is also included with the survey number of the property belonging to the temple, and the suit property is more or less like a bund for the protection of the tank.

5. The trial court, after evaluating the entire evidence, passed a decree in favour of the plaintiffs in both the suits.

6. The matter was taken in appeal by the defendant in A.S.No.29 of 1993, on the file of Additional District Judge, Karaikal. The lower appellate court reversed the finding of the Munsif and allowed the appeal. Against that, this second appeal is filed.

7. The following substantial questions of law have been formulated in the memorandum of second appeal:

“(1) Has not the lower appellate court committed an error of law in allowing the appeal when the appellants have proved their title and possession in respect of the suit property through documentary evidence, viz., Exs.A-1 to A-3 and oral evidence? and

(2) Has not the lower appellate court committed an error of law in relying upon the Advocate-Commissioner’s report when it was not marked?”

8. Notice of motion was ordered, and in response to that, respondent also entered appearance.

9. Heard learned counsel on both sides.

10. At the time of arguments, the main contention raised by the plaintiffs/appellants was that the suit is barred by res judicata, since the defendant preferred only one appeal, namely, A.S.No.29 of 1993 even though a common judgment was passed in both the suits. Even though there was only one appeal, the lower appellate court has reversed the findings in both the suits, which is most improper and is also one without jurisdiction. It was also contended that by filing a single appeal before the lower appellate court, against the common judgment, is an i