J U D G M E N T

The defendant in O.S.No.490 of 2004 on the file of the Principal District Munsif Court, Ambasamudram is the appellant in this second appeal.

2. The suit was filed by the respondent herein, namely Jeya Maria Packiyam seeking injunction restraining the appellant herein from interfering with her right to take water from the suit pipeline and let in waste water and rain water in the suit property. The appellant herein filed a counter claim in the said suit. The appellant sought permanent injunction restraining the plaintiff to let any waste water and rain water in the suit property and for mandatory injunction removing the suit pipeline laid under the second schedule property mentioned in the written statement. Based on the divergent pleadings, the learned trial Munsif framed as many as seven issues. The plaintiff examined herself as P.W.1. Municipal official Ganeshram was examined as P.W.2. Ex.A.1 to Ex.A.6 were marked. The appellant herein examined himself as D.W.1 and Ex.B.1 and Ex.B.2 were marked. After consideration of the evidence on record, the Trial Court by a common judgment partly decreed the suit in favour of the plaintiff and parallely and correspondingly decreed the counter claim in favour of the defendant. Aggrieved by the same, the appellant herein filed A.S.No.8 of 2006 before the Sub Court, Ambasamudram. By the impugned judgment and decree dated 30.09.2009, the first appeal was dismissed and the decision of the Trial Court was confirmed. It is relevant to mention here that the respondent herein did not question the decision of the Trial Court. Aggrieved by the decision of the first Appellate Court, this second appeal came to be filed.

3. Though the second appeal was filed way back in the year 2010, it has not been admitted till date and only notice was ordered.

4. When the matter was taken up for hearing, the learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to formulate the substantial questions of law and admit this second appeal and take it up for disposal later.

5. Per contra, the learned Senior counsel appearing for the respondent submitted that this second appeal is not maintainable because the appellant has filed only a single appeal. According to the learned Senior counsel, no substantial question of law arises for consideration.

6. I carefully considered the rival contentions and went through the evidence on record.

7. The objection raised by the learned Senior counsel appearing for the appellant can be taken up first. The learned Senior counsel submitted that the respondent filed a suit, while the appellant filed a counter claim. The suit was partly decreed, while the counterclaim was also partly decreed in favour of the respective parties. Therefore, in the very nature of things, the appellant should have filed two appeals. But the appellant herein had chosen to file only one appeal. Thus there has not been a challenge either to the decree passed in the suit or in the counter claim. The failure to question the decree against anyone would operate as a res judicata. Therefore, he called upon this Court to dismiss the second appeal as not maintainable. In this regard, the learned Senior counsel placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 1993 SC 1202 (Premier Tyres Limited Vs.

Kerala State Road Transport).

8. I am not persuaded by the preliminary objection raised by the learned Senior counsel. Though there was a suit and a counter claim, the Trial Court chose to pass only a single decree. Of course, in that composite decree the suit had been partly decreed and the counter claim had also been partly decreed. When there is only a single decree, the aggrieved party can file only a single appeal. Of course he was obliged to value the appeal both as regards the suit and also as regards the counter claim. In this case, the appellant has rightly done so.

9. The learned counsel appearin