The main legal point established is the binding nature of judgments, the importance of evidence in establishing the existence of a common pathway, and the implications of failing to seek recovery of possession for encroachment.

This second appeal arises out of the concurrent findings of the Courts below dismissing the plaintiffs suit and declining to grant Permanent Injunction. Unsuccessful plaintiffs are the appellants.

.2. The suit property relates to a common pathway in S.No.30/1 measuring North South 3 yd; East West 25 yd; out of North South 25 yd and East west 15 yd which belongs to the family of the plaintiff and the Defendant. The parties are related as under:-

.Maruva Udayar

.3. Briefly stated case of the plaintiff is as follows :- Due to financial crisis, Maruvu Udayar executed two Sale Deeds in 1934 and transferred all his properties in the name of his first wife Ariyathammal, mother of the Defendant. It is the further case of the plaintiff that after the death of Maruva Udayar, all four sons of Maruva Udayar entered into an oral partition before the Panchayatars, in the presence of Ariyathammal. As per the said oral partition, all four sons are in possession and enjoyment of their respective shares. As per the said oral partition, house and vacant land in S.No.30/1 – 25 yd x 15 yd were allotted to the three sons, except the Defendant. It is the further case of the plaintiffs that the Defendant was allotted some other property in the same village. In 1970, Defendant had purchased a hut from Kanniammal, wife of Govindasami under Ex.B-4. Plaintiffs property is situated on the North of the suit schedule property. Alleging that under the pretext of reconstruction of demolished hut, the Defendant is trying to extend the hut by encroaching the suit schedule property, which is used as common pathway, plaintiffs have filed the suit for Permanent Injunction.

4. The Defendant admitted that the suit schedule property along with the house situated in S.No.30/1 was transferred in the name of Ariyathammal, under Ex.B-1, Sale Deed 011. 1934. Thereafter, the suit property was settled in favour of her three sons and that the first plaintiff did not have any right. According to the Defendant, the Defendant is entitled to the suit schedule property as per Exs.B-3 and B-4. The Defendant alone has been in possession and enjoyment of the hut as well as the suit property. Alleging that the suit property was never used as common pathway, the Defendant prayed for dismissal of the suit.

5. On the above pleadings, relevant issues were framed. The trial Court dismissed the suit holding that the plaintiffs have not produced any document to show that they are in possession of the suit property. The trial Court further held that there is a wall in the suit property and the plaintiffs had not sought for mandatory injunction and therefore, the plaintiffs cannot seek for Permanent Injunction.

6. Aggrieved, the plaintiffs have preferred appeal in A.S.No.14/1991. Confirming the findings of the trial Court, the Appellate Court also held that the plaintiffs have not proved that there was already a Panchayat and partition was effected. Adverting to Exs.A-1 to A-3 and Exs.B-1 to B-4, the Appellate Court held that there is no mention of common pathway in those documents. The lower Appellate Court recorded a specific finding that there is no mention of common pathway in Ex.A-11. Observing that the plaintiffs have not proved that suit property is used as common pathway and plaintiffs have not impleaded all necessary parties, the lower Appellate Court dismissed the appeal, confirming the findings of the trial Court.

7. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration:-

"1. Whether the Courts below are right in ignoring the findings rendered in O.S.No.272/1978 on the file of the court of District Munsif, Gingee in respect of the suit property which was between the parties and successors in the present action?

2. Whether the Courts below are right in dismissing the suit on the ground of non-jonider of certain parties without giving a finding whether they are necessary parties?"

8. In the Courts below,