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IN THE HIGH COURT OF KERALA AT ERNAKULAM
EASWARAN S., J
T.NARAYANAN NAIR – Appellant
Versus
E.JANARDHANAN – Respondent
RSA NO. 756 OF 2012 | AS NO.77 OF 2009 | OS NO.179 OF 2007
| Table of Content |
|---|
| 1. plaintiff preferred appeal for prescriptive right. (Para 1) |
| 2. counsel presented arguments on maintainability. (Para 2) |
| 3. court found appeal non-maintainable. (Para 3) |
J U D G M E N T
This appeal is preferred by the plaintiff in O.S NO.179/2007.
The suit was instituted seeking a declaration of prescriptive Easementary right over the plaint schedule property. The suit was tried along with O.S No.274/2006, instituted by the respondent as the plaintiff. By a common judgment and decree dated 09.02.2009, O.S No.179/2007 was dismissed and O.S No.274/2006 was decreed. The appellant did not prefer any appeal against the judgment and decree passed in O.S No.274/2006. However, an appeal was filed only against the dismissal of O.S. No.
179/2007, which also came to be dismissed. Hence, the present appeal.
2.Heard Shri, P.B Subrahmanyam, the learned counsel for the appellant.
3. This court is of the considered view that the appeal filed against O.S No.179/2007 is not maintainable. When a common judgment is rendered in two suits, non filing of an appeal against the judgment and decree in the other suit constituted as res judicata. Under these circumstances, this court is of the considered view this appeal is not maintainable because of the failure of the appellant to file an appeal against the judgment in O.S No.274/2006.
Accordingly, the appeal is not maintainable and the same is dismissed.
Sd/-
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