The court emphasized that the present suit was not barred by res-judicata and that the evidence of possession and enjoyment of the suit property by the plaintiffs was crucial in establishing their right and title.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 13.07.2012 in A.S.No.56 of 2010 on the file of Principal Subordinate Court, Salem confirming the judgment and decree dated 21.08.2003 in O.S.No.837 of 2001 on the file of Principal District Munsif Court, Salem.)

1. The legal representatives of the defendant are the appellants in the Second Appeal.

2. The first and second respondents/plaintiffs filed a suit seeking for the relief of declaration of title and for permanent injunction.

3. The case of the plaintiffs is that a Settlement Deed was executed by the grandfather of the plaintiffs in the year 1947, which was marked as Ex.A1 and as per this Settlement Deed, the property was settled in favour of the father of the plaintiffs and his brothers. On the demise of the grandfather, there was an oral partition between the father of the plaintiffs and his brothers and the suit property fell into the share of the father of the plaintiffs.

4. The further case of the plaintiffs is that on the demise of their father, they became entitled to the suit property and they have been in possession and enjoyment of the same by paying the necessary tax and kisth to the Government.

5. The grievance of the plaintiffs is that the defendant who is having his property adjacent to the suit property was attempting to disturb the possession and enjoyment of the plaintiffs in the suit property and was also trying to create a cloud over the title to the suit property. Left with no other option, the suit came to be filed seeking for the relief of declaration of title and permanent injunction.

6. The defendant filed a written statement and took a stand that he is none other than cousin brother of the plaintiffs and he denied the right and title of the plaintiffs in the suit property. The defendant also took a stand that he already filed a suit in OS No.621 of 1983 against the plaintiffs and others with regard to the same property seeking for the relief of permanent injunction and the suit was decreed in his favour and it was also confirmed in the Appeal. Therefore, the defendant took a preliminary objection to the maintainability of the suit on the ground that it is barred by resjudicata. The defendant took a further stand that the property was sold by him in favour of a third party and they have not been added as defendants in the suit and hence the suit is hit by non-joinder of necessary parties. Accordingly the defendant sought for the dismissal of the suit.

7. Both the Courts below on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, concurrently held in favour of the plaintiffs and decreed the suit. Aggrieved by the same, the legal heirs of the defendant have filed this Second Appeal.

8. Heard Mr.P.Jagadeesan, learned counsel appearing for the appellants and Mrs.Sasikala Ramadoss, learned counsel appearing for the second respondent. This Court also carefully went through the materials available on record and the findings of both the Courts below.

9. The plaintiffs in order to prove their right over the suit property examined the first plaintiff as P.W.1 and the Village Administrative Officer as P.W.2. The plaintiffs also filed Exs.A2 to A8 to prove their possession and enjoyment of the suit property. During the pendency of the suit, an Advocate Commissioner was appointed and a Report was filed along with Sketch and the same was also marked as Exs.C1 and C2.

10. Both the Courts below dealt with the preliminary issue of resjudicata that was raised by the defendant. On analysing the description of the property in the earlier suit filed by the defendant and the present suit, it was found that they were two different properties. Hence both the Courts concurrently held that the present suit is not hit by res-judicata. Both the Courts before rendering such a finding also took into consideration the Report of the Advocate Commissione