The principle of res judicata applies when the matter directly and substantially in issue in the subsequent suit has been heard and finally decided by the court in the former suit, even if the former suit was decided ex parte.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of C.P.C against the judgment and decree passed in A.S.No.105 of 2008 dated 09.09.2009 on the file of Principal District Court, Erode, confirming the judgment and decree passed in O.s.No.172 of 2004 dated 27.04.2007 on the file of District Munsif-cum-Judicial Magistrate, Perundurai, Erode District.)

(The case has been heard through video conference)

1. The Second Appeal is filed by the unsuccessful plaintiff in her suit for permanent injunction.

2. The defendants in the suit are admittedly the owners of the land west of the suit property. The cause of action for the suit alleged to have arisen on 05.04.2003, when the 1st defendant with the active support of his men, attempted to trespass into the suit property and form a cart track in the suit property.

3. According to the plaint, she is the widow of Late.Arunachala Gounder. On 06.07.1977 Arunachala Gounder and his brother C.Palanisamy through the partition deed divided the family property among themselves. The suit property measuring 0.76 acres was allotted to the Arunachala Gounder. On the death of Arunachala Gounder, who died intestate in the year 1979, the plaintiff and her son Thangaraj @ A.Palanisamy, the 5th defendant, became the absolute owners of the suit property. On the northern side of the suit property, the residential building of the plaintiff and 5th defendant is located. On the East of the suit property, the land and building of the 2nd defendant is located. Further, on the East, the land of the 1st defendant is located. The lands of the respective parties are well de-marked with specific survey numbers. On the north of the plaintiff and defendant’s land, runs the water channel of 2 feet breath in the middle of 15 feet width porambokku land of Lower Bavani Project. The Porumbokku land on the South of the water channel is the access to the plaintiff and defendants 3 to 5 land. Except the channel prombokku land, no other space was used for access. Though, in the partition deed of the year 1979 some space on the north of the patta land was left, the second defendant has constructed his house in the year 1957 without leaving any space on the north. The access to his property is from the east. Similarly, the 3rd and 4th defendants had constructed their house leaving only 4 feet on the northern side. In that space, there are old trees. The space left on the north of the plaintiff’s patta land was never used as access by the first defendant. While so, claiming that, he have an order of the Court to use the northern space of the plaintiff as cart track, the first defendant is making attempt to create a cart track.

4. The first defendant, in his written statement, denying all the averments of the plaintiff, contended that, when Arunachala Gounder (husband of the plaintiff and father of the 5th defendant) and his brother the third defendant C.Palanisamy divided the family property, in the partition deed there is a recital that the parties are entitled to enjoy the 8 feet pathway starting from North-West corner to the end of east leading to Koppu Vaikkal. It is also stated that the parties are entitled to take their cattle and carts through it. The pathway is shown as the boundaries of the parties. The recital in the partition deed dated 06.06.1997 is binding on the plaintiff. The revenue records and field map for S.Nos.189 & 192 shows the existence of pathway. Earlier, the 2nd defendant Vengana Gounder filed suit in O.S.No.188 of 1992 on the file of District Munsif Court, Erode, against the defendants 3 & 4. In the said suit, the Advocate Commissioner’s visited the suit property and noted the existence of cart track. The defendant has filed suit for permanent injunction in O.S.No.435 of 1996 against the defendants 2 to 5 and one P.A.Subramaniam on 18.01.1997, for permanent injunction against the said persons restraining not to obliterate the cart track that suit was allowed and prayer granted. Therefore, the present