The court affirmed that distinct properties negate the applicability of res-judicata, and the Advocate Commissioner's report is valid for clarifying property boundaries.

JUDGMENT

Aggrieved the plaintiff herein preferred the appeal in A.S.No.116 of 2008 and upon consideration, the First Appellate Court held that though the plaintiff did not take any steps and the property delivered to the defendant before the First Appellate Court, an application to appoint Advocate Commissioner was filed by the plaintiff and based on the report and sketch of the Advocate Commissioner, the properties claimed by the plaintiff and by the defendant are different properties and granted reliefs in favour of the plaintiff as prayed for in the suit. Against this judgent and decree passed by the First Appellate Court in the above said First Appeal, the defendant has preferred this Second Appeal.

3. The learned counsel for the appellant/defendant would strenuously argue that the plaintiff did not produce any field map or sketch to show that the suit schedule property is different from the property allotted to the appellant/defendant. The First Appellate Court has misconstrued the fact that the plaintiff is in possession of the suit schedule property by over looking the fact that no document was produced by the appellant/defendant to prove her possession. He would further contend that the theory of res-judicata is misinterpreted by the First Appellate Court.

4. In fact, the suit is barred by res-judicata in view of the judgment rendered in O.S.No.129 of 1997. The suit schedule property was allotted to the appellant/defendant in O.S.No.129 of 1997. The report of the Advocate Commissioner was not clear and sought for dismissal of the suit.

5. Per contra, the learned counsel for the respondent/plaintiff would argue that the plaintiff purchased the suit property namely Plot No.12, Vill Nagar, Salamedu Village, to an extent of 30' x 60', for a total extent of 1800 Sq.ft., with a given boundaries by a sale deed dated 13.10.1990 from the power agent of her vendor G.Lakshmi Narayanan and since then the plaintiff has been in peaceful possession and enjoyment of the suit property. On the application made by the plaintiff, she has been in possession of the suit property, she has been granted patta in No.1695 in respect of the suit property. He would further contend that the defendant who does not have any right or title in the suit property has been denying the title of the plaintiff. The plaint averments are not property appreciated by the trial Court, whereas, the First Appellate Court on the petition of the plaintiff, appointed the Advocate Commissioner and he has identified the suit property as well as the defendant's property (0.09 cents in S.No.282/4). The Fist Appellate Court having appreciated the contents of the report of the Advocate Commissioner has held that the defendant has no right or title over the suit property and based on the oral and documentary evidence of the plaintiff, concluded that the plaintiff is entitled for declaration of title in respect of the suit property and the defendant was restrained from interfering with the peaceful possession and enjoyment of the suit property.

6. Following substantial questions of law arises for consideration:

1) Whether the suit filed by the respondent/plaintiff is barred by res-judicata?

2) Whether the lower Appellate Court is justified in relying upon the report of the Advocate Commissioner when it is vague, unclear and devoid of material particulars and whether such report is valid under law?

7. The case of the plaintiff is that S.No.282/4, acre 0.54 cents originally performed to the joint family of Nagarathinam and his sons Raje