Prior civil court decree declaring property as public pathway binds successors; sale deed cannot confer title.

THE HONOURABLE Mr.JUSTICE N.ANAND VENKATESH SA. (MD)No.107 of 2007 and CRP Nos.920 and 921 of 2005 SA(MD) No.107/2007 Senthil Vadivu .. Appellant/Plaintiff Vs.

1.Ponnusamy

2.Sadayappan .. Respondents/defendants Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 02.12.2004 in AS No.50/2003 on the file of the Subordinate Court, Tiruchirappalli, confirming the judgment and decree dated 02.12.2002 in OS No.52/1998on the file of the District Munsif Court, Musiri.

For Appellant : Mr.V.Rajakittu For Respondents : No appearance CRP(MD) Nos.920 and 921/2005 Senthil Vadivu .. Petitioner in both petitions Vs.

1.Ponnusamy

2.Sadayappan .. Respondents in both petitions Petitions filed under Article 227 of the Constitution of India against the order and decreetal order dated 02.12.2004 in IA Nos.1044/2003 and 98/2004 in AS No.50/2003 on the file of the Subordinate Court, Tiruchirappalli.

For Appellant : Mr.V.Rajakittu For Respondents : No appearance

JUDGMENT

The second appeal is filed against the judgment and decree dated

02.12.2004 in AS No.50/2003 on the file of the Subordinate Court, Tiruchirappalli, confirming the judgment and decree dated 02.12.2002 in OS No.52/1998on the file of the District Munsif Court, Musiri.

2. The plaintiff is the appellant in the present second appeal.

3. The plaintiff filed the suit on the ground that he has purchased the suit property from one Saradhambal through a registered sale deed dated 02.02.1998 and had constructed a building over the property. While so, the defendants were attempting to interfere with the possession and enjoyment of the property and had also filed a suit in OS No.80/1990 as if the property is a public pathway. It is under these circumstances, the suit came to be filed seeking for the relief of permanent injunction.

4.The defendants filed a written statement and they took a stand that Saradhambal had no right to sell the property in favour of the plaintiff. They took a further stand that the suit was filed in OS.No.80/1990 wherein the father of the plaintiff was a party and after contest, the suit was decreed by declaring that the property is a public pathway and with a mandatory injunction for restoring the suit property to its original position. The defendants took a stand that in order to defeat the said decree that was passed by the competent civil Court, the present suit has been filed.

Accordingly, they sought for dismissal of the suit.

5. The trial Court, after considering the facts and circumstances of the case and on appreciation of the evidence, came to a conclusion that the plaintiff has not made out a case and accordingly, the suit came to be dismissed by judgment and decree dated 02.12.2002 and the same was confirmed in appeal in AS No.50/2003 by judgment and decree dated 02.12.2004. Aggrieved by the same, the present second appeal has been filed before this Court.

6. When this second appeal was entertained, only notice regarding admission was issued and no substantial questions of law were framed. Notice has been served on the respondents and their names have been printed in the cause list and there is no appearance either in person or through counsel.

7. This Court heard the learned counsel for the appellant in order to ascertain if any substantial question of law is involved in the present second appeal.

8. The learned counsel for the appellant submitted that the appellant was not a party in the suit filed in OS No.80/1990 nor was the vendor of the appellant a party and therefore the said judgment will not bind the appellant. The learned counsel further submitted that the appellant had clearly proved his title over the property through Ex.A1 sale deed. It was further submitted that IA No.1044/2