Second appeal barred by res judicata.

Plaintiffs in O.S. No.337 of 1985, on the file of District Munsif’s Court, Harur, are the appellants.

2. Suit filed by them was to declare their title to 1-17 acres of land which is more specifically described in the plaint schedule. It is their case that they purchased the property as per sale deed dated 25. 1974 from Chinnappa Gounder, Sevatha Gounder and Raja Gounder. It is further said that even though the sale deed refers to only one acre of land, in fact they obtained possession of 1-17 acres, and ever since the sale deed of 1974, they came into possession of the property, and the same was within the boundaries described in the sale deed. It is further said that the property has also been sub-divided and the said 1 acre, 17 cents has been given sub-division numbers, and they are also paying revenue to the Government. Cause of action was stated to be that de- fendants 2 to 4, who are previous owners have instigated first defendant to trespass into the portion and, therefore, the suit was filed for the reliefs stated above.

.3. In the written statement filed by defendants 2 to 4, they contended that the sale deed in favour of plaintiff is only for one acre, and the allegation that it covers 1 acre, 17 cents is not correct. The 17 cents is forming part of their property and the plaintiff is attempting to trespass into the same. They further state that they sold 4 cents of land to first defendant out of the 17 cents since the said portion is touching his building. It is further said that the first defendant is the absolute owner of the 4 cents. They prayed for dismissal of the suit.

4. First defendant, in a separate written statement, contended that he has taken 4 cents of land from defendants 2 to 4, and plaintiffs have title only for an extent of 1 acre. He prayed that the suit may be dismissed.

5. By an additional written statement, he claimed that he may be given possession of 4 cents of land which plaintiff has trespassed in 1985, on the basis of title. That was in the nature of a counter-claim, under 0.8, Rule 6-A, C.P.C. The said relief was separately valued under Sec.25(a) of the Tamil Nadu Court-fees and Suits Valuation Act. First defendant prayed that the court may be pleased to dismiss the suit and decree the counter-claim, and render justice.

6. Trial court held that the plaintiff obtained title only for one acre. There was trespass by plaintiff in the year 1985, and he has no possession before that. The claim that he obtained possession from 1984 onwards is incorrect. First defendant obtained title to 4 cents. Therefore, plaintiff was directed to handover possession of 4 cents. A decree was granted in favour of plaintiff only for one acre, and, in respect of the disputed portion of 17 cents, the suit was dismissed. At the same time, the counterclaim was allowed, directing the plaintiff to handover possession of the 4 cents, which he purchased under Ex.B-4.

7. An appeal was filed before the lower appellate Court by plaintiff. Lower appellate court also confirmed all the findings of the trial court.

8. It is against the concurrent judgments of both the courts below, plaintiff has preferred this second appeal.

9. Since caveat was filed, even at the time of admission stage, with the consent of learned counsel on both sides, the main second appeal itself was heard for final disposal on merits.

.10. Learned counsel for 1st respondent took a preliminary contention that the second appeal is not maintainable since the same is barred by res judicata It is his case that his counter-claim has been allowed, and when the same is not appealed against, that decision binds the plaintiff, and the second appeal is, therefore, not maintainable.

11. As against the said contention, learned counsel for the respondents submitted that the principle of res judicata may not apply since there is only one suit and one decree. Against that decree, the appeal is preferred. There is no former or subsequent suit, and there i