JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the learned Judge of the Sub-Court, Ranipettai, Vellore District, dated 10.12.2001 passed in A.S.No. 42 of 1999 confirming the decree and Judgment of the learned Judge of the District Munsif Court of Arcot, dated 19.4.1999 passed in O.S.No. 292 of 1996.)

1. The 1st defendant, The Special Officer, C 1252, Arcot Co-operative Marketing Society Ltd., Arcot, in O.S. No. 292 of 1996 on the file of the District Munsif Court, Arcot is the appellant herein.

2. The said suit in O.S. No. 292 of 1996 had been filed by the 1st respondent herein, Ponnusamy, seeking permanent injunction restraining the 1st defendant therein/appellant herein/ The Special Officer, C 1252, Arcot Co-operative Marketing Society Ltd., Arcot, from preventing his/the plaintiff’s right of way over the road running East-West on the Southern side of the plaintiff’s property and on the Northern side of the 1st defendant’s property, and measuring 12 ft., in breadth and about 200 ft., in length, called Nawab Devadi Street.

3. By Judgment dated 19.04.1999, the District Munsif, Arcot decreed the suit with costs.

4. The 1st defendant in the suit/appellant herein then filed A.S. No. 42 of 1999 before the Sub Court, Ranipet. By judgment dated 10.12.2001, the Sub Judge, Ranipet, dismissed the appeal suit with costs.

5. The 1st defendant in the suit then filed the present second appeal.

6. The only substantial questions of law which arises for consideration is

“Whether the judgment and decree in the earlier suit in O.S. No. 104 of 1995 would act as res judicata in deciding the issues in O.S. No. 292 of 1996 from which the present second appeal has emanated ?”

7. In the plaint in O.S. No. 292 of 1996, the plaintiff claimed that to the south of his property lies the Nawab Devadi Street and the godown of the 1st respondent. He claimed that the said road, measuring 12 ft., in breadth and about 200 ft., in length runs east-west and has been described as a road in the plan of the 2nd defendant, the Arcot Municipality. He further claimed that the 1st defendant was trying to close the road by putting a fence. This had necessitated institution of the suit seeking the relief as stated above.

8. In the written statement of the 1st defendant, the facts stated had been denied and disputed. It was specifically denied there was a road to the south of the plaintiff’s property. It had been claimed that the 1st defendant had earlier filed O.S. No. 104 of 1995 before the District Munsif Court at Ranipet with respect to identical property and had obtained a decree against the plaintiff. It had therefore been claimed that the suit was barred by res judicata.

9. The 2nd defendant filed a written statement claiming there was a road and that the road vested with the Arcot Municipality. One of the primary issues framed by the trial court was whether the suit was barred by res judicata in view of the judgment in the earlier suit in O.S. No. 104 of 1995.

10. During trial, the plaintiff examined one witness and the 1st defendant examined three witnesses. Both sides filed their respective title documents. The 1st defendant also filed as Ex. B6 the report and sketch filed by the Advocate Commissioner in the earlier suit in O.S. No. 104 of 1995 and as Ex. B7 the decree copy alone of the earlier suit in O.S. No. 104 of 1995.

11. On analysis of the pleadings and oral and documentary evidence, the trial court came to a definite finding that there was a road to the south of the plaintiff’s property, which is also evidenced by the boundary as reflected in Ex. A1, the title deed of the plaintiff dated 17.08.1978 and in Ex. A2, the plan for construction of house submitted by the plaintiff and as approved by the 2nd defendant. The title deed of the 1st defendant was of the year 1960. There was no road at that time.

12. It was also found as a fact that the properties in both O.S. No. 104 of 1995 and in the