The Court established that attempting to claim declaration in respect of the same property, which was already dealt with in an earlier suit, was impermissible and an abuse of process of law.

JUDGMENT :

Common Prayer: These Second Appeals are filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 28.09.1994 made in A.S.No.70 of 1993 on the file of the Subordinate Judge, Kuzhithurai confirming the judgment and decree of the learned Principal District Munsiff, Kuzhithurai made in O.S.No.369 of 1985.

1. These two second appeals have been filed as against the judgment of the First Appellate Court allowing the appeal in part. S.A.No.770 of 1995 was filed by the defendants challenging the decree and judgment of the First Appellate Court granting decree in favour of the plaintiff in respect of Survey No.2480. The unsuccessful plaintiff in respect of Survey Nos.2837- C and 2837-E has filed S.A.No.1741 of 1997.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Appeal Suit, are as follows:

It is the contention of the plaintiff that the suit properties is a specific plots measuring 49 cents and it lies east of the village Odai (Ooru Vaikkal or Thodu). The plaintiff has purchased the same on 03.01.1997. The defendants claims right in the properties, which lie west of the village odai (Ooruvaikal or Thodu). The defendants 2 to 4 filed a suit in O.S.No.133 of 1977. The plaintiff was forced to contend the suit. The trial Court dismissed the same, as against the same second appeal has been filed and the same is pending in S.A.No.1704 of 1981. As the present suit property is lying east of the Odai (Oorvaikal or Thodu), the defendants have no right. Hence, the suit.

(ii) Originally the suit has been filed for permanent injunction. However, during the pendency of the suit, an amendment petition was filed seeking to amend the prayer. Accordingly, declaration of title and possession was added as consequential relief by an order dated 22.11.1992 in I.A.No.1165 of 1991.

4. It is the contention of the first defendant that the plaintiff has no manner of right and possession over the suit properties. The alleged sale deed dated 03.01.1997 is invalid. The defendants 2 to 4 have filed a suit in O.S.No.133 of 1977 in respect of specific plots in old Survey Nos.2837-C measuring 14 cents, 2837-D, measuring 11 cents and 2837-E, measuring 18 cents, totally 43 cents. The plaintiff as defendant resisted the suit opposing the sale deed dated 03.01.1977. In the said suit, it was held that the present plaintiff has no manner of right and possession and the sale deed is invalid. The plaintiff taking advantage of the boundary description has filed the present suit and the claim of the plaintiff is barred by estoppel and res judicata. The defendants 2 to 4 are the owners of the entire plots. The plaintiff had no title whatsoever in the suit property. The defendants 2 to 4 had executed an agreement of sale in favour of the first defendant. Hence prayed for dismissal of the suit.

5. Based on the pleadings, the following issues were framed by the trial Court:

1. Whether the plaintiff is entitled to get injunction as prayed for in the plaint?

2. Whether the claim of the plaintiff is barred by estoppels and resjudicata by reason of the judgment and decree in A.S.No.344 of 1978 in O.S.No.133 of 1977?

3. Whether the suit is maintainable?

4. Relief as costs?

Additional issues:

1. Whether the plaintiff is entitled to the declaration of title and possession over the suit property?

2. Is the plaintiff is having valid title and possession of the suit property?

6. Before the trial Court, on the side of the plaintiff P.W.1 to P.W. 4 were examined and Exs.A1 to A9 were marked and on the side of the defendants D.W.1 was examined and Exs.R1 to R13 were marked.

7. Based on the evidence and materials, the trial Court dismissed the suit holding that the suit property was already dealt in an earlier suit and the plaintiff has not established title in respect of Survey No.2480. However, the First Appellate Court granted decree in respect of 2480 in