The defeated defendants are the appellants herein.
2. The plaintiffs filed the suit, in O.S.No.405 of 1998, before the learned District Munsif, Thirumangalam, seeking the relief of permanent injunction.
3. After contest, the learned District Munsif, Thirumangalam, by Judgment and Decree, dated 20.09.2004, dismissed the suit.
4. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Thirumangalam, the plaintiffs preferred an appeal, in A.S.No.269 of 2004, before the learned III Additional Subordinate Judge, Madurai.
5. After contest, the learned III Additional Subordinate Judge, Madurai, by Judgment and Decree, dated 30.03.2005, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit.
6. Challenging the correctness of the Judgment and Decree passed by the learned III Additional Subordinate Judge, Madurai, the defeated defendants have preferred the present second appeal.
7. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The first plaintiff is the wife and the second plaintiff is the son of one Ramasamy Thevar, who is the original owner of the suit property. The suit property consists of house and vacant site. Ramasamy Thevar purchased the suit property under two separate Sale Deeds, dated 13.07.1978 and 29.08.1989 from one Veerabadra Thevar. Ever since the date of purchase, Ramasamy Thevar had been in possession and enjoyment of the suit property. He had put up a house in the vacant site purchased by him and kept the remaining portion as vacant. He died on 20.07.1995, leaving behind the plaintiffs as legal heirs. After his demise, the plaintiffs have been in possession and enjoyment of the suit property. The defendants, who have no right over the suit property, attempted to interfere with the plaintiff's possession over the suit property. When the plaintiffs were making arrangements to plaster the northern wall of their house, the defendants caused interference. Hence, the suit.
8. The brief averments of the written statement filed by the third defendant adopted by the defendants 1 and 2 that are necessary to decide this appeal are as follows:
The defendants have denied the right of the plaintiffs over the suit property. The description as given in the plaint is wrong and misleading. The sale deeds relied on by the plaintiffs are not admitted and the recitals thereon are to be strictly proved by the plaintiffs. The fact that the husband of the first plaintiff has put up a house in the vacant site has been admitted. The alleged interference as pleaded by the plaintiffs has been specifically denied. The description of the property as given in the plaint only refers to the vacant site. The defendants specifically disputes the identification of the suit property. The cause of action is also specifically denied. The first defendant is owning a property on the north of the plaintiffs property by registered Sale Deed, dated 29.10.1985. The defendants 2 and 3 are the sons of the first defendant. They have put up a house on the north-west corner of the property purchased and left the remaining portion as vacant space. The plaintiffs are not having any right over the north of their northern wall. The first plaintiff's husband Ramasamy has already filed a suit against the same defendants in O.S.No.977 of 1990 for declaration and injunction and in the year 1992, the said suit has been dismissed for default. Subsequently, neither the said Ramasamy nor the present plaintiffs have not taken any steps to restore the same. Hence, the said decision is binding on the present plaintiffs. By suppressing the above said proceedings, the present suit has been filed. They are alone in possession and enjoyment of the property. Since the earlier suit has been dismissed for default, the plaintiffs are barred to prosecute the present suit. Hence, they prayed for dismissal of the suit.
9. Based upon the above pleadings, the Trial Court had framed three issues for consideration.
10. On the side of the plaintiffs, P.Ws.1 to 3 were examined and Ex.A1 to A11 were marked and on the defendants side, D.Ws.1 and 2 were examined and Exs.B1 to B6 were marked, besides Exs.C1 to C7.
11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs have not proved their possession and therefore, they are not entitled to the relief sought for and dismissed the suit accordingly.
12. As stated supra, aggrieved by the Judgment and Decree of the learned District Munsif, Thirumangalam, the plaintiffs preferred first appeal in A.S.No.269 of 2004, before the learned III Additional Subordinate Judge, Madurai and the learned First Appellate Judge, after re-appreciation of the entire oral and documentary evidence, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit.
13. At the time of admission, the following substantial questions of law were framed for consideration:
(i) Whether the findings of the Courts below are vitiated by failure to consider the absence of any evidence in respect of the claim made and the admission of the P.W.1 with reference to the prior proceedings? And
(ii) Whether the Courts below is right in not adverting to the specific plea with reference to bar of suit under Order II Rule 2 of Civil Procedure Code or under Order IX Rule 9 of Civil Procedure Code?
14. The respondents / plaintiffs are wife and son of deceased Ramasamy Thevar, who is the original owner of the suit property consists of house and vacant site, having purchased the same from Veerabadra Thevar and they instituted the suit for injunction restraining the respondents / defendants from interfering with their peaceful possession and enjoyment of the suit property. Item No.III of the suit schedule property alone is the subject matter of the suit, which has been admitted by both the parties. According to the respondents / plaintiffs, they have purchased the property and put up a wall on the northern side of the property. On the northern side of the wall, there is a vacant site i.e., Item No.III of the suit schedule, having been kept vacant for easement of air and future development. However, the appellants / defendants have come forward with the specific plea in their written statement that the description of the property refers to vacant site and it is a backyard of their property. Further, they have alleged that the earlier suit filed by the first respondent / plaintiff's father against the appellants / defendants was dismissed for default and therefore, it operates as res judicata and the present suit is barred under Order IX Rule 9 C.P.C.
15. As stated supra, on behalf of the respondents / plaintiffs, the first plaintiff was examined herself as P.W.1 and marked Exs.A1 to A6 and the V.A.O. of Villur Bit.1 Village was examined as P.W.2 and marked A-Register, Natham Nilavari Thitta Thoraya Adangal Register, Rough Sketch, Partition Deed entered into between Veerabathira Thevar and Karuppasamy Thevar and Sale Deed executed by Ramanathan to and in favour of Subramanian as Exs.A7 to A11 respectively. Per contra, on behalf of the appellants / defendants, the third defendant was examined as D.W.1 and marked Exs.B1 to B6 and one Murugaiah was examined as D.W.2 (vendor of defendants).
16. Before the Trial Court, in order to ascertain the physical features of the disputed property viz., Item No.III of the suit property, an Advocate Commissioner was appointed and he inspected the property and filed a rough sketch, dated 20.06.2000, which has been marked as Ex.C2. However, in view of non-clarity, another Advocate Commissioner was appointed and he inspected the property with the assistance of V.A.O., and filed his report, rough sketch and F.M.Bs, which have been marked as Exs.C4 to C7 respectively.
17. It is not in dispute that Item No.III of the suit property lies on north of the respondents / plaintiffs' house as described in the Commissioner's Reports. Admittedly, it is a vacant land. From the evidence of P.Ws.1 and 2 coupled with the documentary evidence of Exs.A1 and A2 Sale Deeds, the property was in Survey No.381/7. As per the evidence of P.W.2 / VAO, the said Survey No.381/7 has been renumbered as Survey No.148/7 and again renumbered as Survey No.315/7 as could be evidenced by Exs.A7 to A9 revenue records.
18. P.W.2 Village Administrative Officer, in his evidence, has categorically stated that gpujpthjpfSf;F g[y vz; 381/7y; vt;tpjkhd epyKk; fpilahJ. njpy;, mth;fSf;F mDgtKk; fpilahJ. 381/7, 148/7 (a[oMh;), fpuhk ej;jk; 315/7 Mfpait xBu nlk; jhd;. njpy;, FUtk;khs;, rA;fpyp Mfpath; bgaUf;F Tl;Lg;gl;lh ny;iy. Thus, from the evidence of P.W.1 and documentary evidence of Exs.A1 and A8 coupled with the oral evidence of P.W.2 and Exs.A3 to A7, the Lower Appellate Court has come to the conclusion that Item No.III lies in Survey No.315/7 and the plaintiffs became the absolute owners of the said property. At this juncture, it is relevant to point out that D.W.1, in his evidence, has categorically stated that they own property only in Survey No.381/1. The said survey number has been changed to 314/5. Admittedly, the disputed Item No.III lies only in old Survey No.381/7 equivalent to new Survey No.315/7. In other words, the disputed suit Item No.III lies in Survey No.315/7 and for which the third appellant / defendant himself had admitted no title over the property.
19. In view of the specific statement of P.W.2 / VAO coupled with the documentary evidence of Exs.A1 to A8 and admission of D.W.1, in the cross- examination that the defendants do not have any right, title or interest over the land in survey No.315/7 equivalent to 381/7, the Lower Appellate Court has come to the conclusion that the appellants / defendants have no right, title or interest over the suit property.
20. The suit is one for bare injunction against the appellants / defendants. The respondents / plaintiffs have come forward with a specific plea that they have put up a house on the southern side of Item No.III and kept Item No.III as a vacant side for easement of air and future development. Per contra, the appellants / defendants contended that the respondents / plaintiffs' northern wall is their limit and further on the north of the northern wall, the plaintiffs have no title. As stated supra, the vacant site, which is the subject matter of the suit and shown as Item No.III of the suit property, does not come in the survey number of the appellants / defendants' Sale Deed (Ex.B1). Both the parties say that they have put up fencing.
21. On perusal of the Commissioner's Report and Rough Sketch, it is clear that DFGH is the vacant site and in which GH is segregating the land of the survey number. The second Advocate Commissioner, who was appointed to inspect and note down the physical features of the suit property with the assistance of VAO, has categorically stated that on the north of GH land, the land in Survey No.314/5 belongs to the appellants / defendants is situated, while on the south of GH land, the land in Survey No.315/7 belongs to the respondents / plaintiffs is situated. On perusal of Exs.A7 to A9 and evidence of P.W.2, the same stands corroborated. In other words, the oral evidence of P.W.2 revenue witness supported by Exs.A7 to A9 was duly corroborated by the Advocate Commissioner's Reports and Rough Sketch marked as Exs.C1, C4 and C5 and accordingly, the Lower Appellate Court has come to the conclusion that Item No.III of the suit property lies in Survey No.381/7, which belongs to the respondents / plaintiffs and accordingly, it has set aside the findings of the Trial Court and granted the relief of injunction.
22. It is a settled position of law that possession follows title. In view of the discussions in the preceding paragraphs that Exs.A1 to A8 associated with the evidence of P.W.2 revenue witness and Exs.A7 to A9 and the Advocate Commissioner's Reports and Sketch Exs.C1, C4 and C5, the Lower Appellate Court has come to the conclusion that the respondents / plaintiffs are the owners of the suit property and they are entitled to the same and in view of the proposition of law that possession follows title, the respondents / plaintiffs are held to be in possession of the vacant site, which is shown as Item No.III of the suit property and hence, the substantial question of law No.I is held against the appellants / defendants.
23. The substantial question of law No.II is as to whether the Courts below are right in not adverting to the specific plea with reference to bar of suit under Order II Rule 2 or under Order IX Rule 9 of the Code of Civil Procedure?
24. The learned counsel for the appellants / defendants contended that in the written statement, a specific plea was raised by the appellants / defendants that the suit is barred by Order II Rule 2 C.P.C., and the earlier suit filed by the husband of the first plaintiff, namely, Ramasamy Thevar, was dismissed for default and the same is binding upon the legal representatives of the deceased Ramasamy Thevar and in support of his contentions, the learned counsel for the appellants / defendants placed reliance upon the decisions in G.Alagarsamy v. R.Seenivasan, reported in 2012 (2) CTC 543; Ranjith Ammal v. Sivasubramanian, reported in 2010 (2) CTC 631 and Suraj Rattan Thirani v. Azamabad Tea Co. Ltd., reported in AIR 1965 SC 295.
25. Per contra, the learned counsel for the respondents / plaintiffs submitted that there is no whisper in the written statement with regard to Order II Rule 2 C.P.C., and in the absence of any plea in the written statement regarding Order II Rule 2 C.P.C., the first portion of substantial question of law No.II does not arise for consideration under this category.
26. At this juncture, it is relevant to refer to the decision rendered by the Hon'ble Supreme Court in Alka Gupta v. Narender Kumar Gupta, reported in (2010) 10 SCC 141, wherein the Apex Court has laid down a law relating to Order II Rule 2 and Section 11 of the Code of Civil Procedure. It reads as follows:
?Civil Procedure Code, 1908 ? S.11 Explns.III & IV- Res judicata ? Constructive res judicata ? Applicability of bar of ? Conditions precedent for recording finding of, held, are that defendant must establish such plea and plaintiff must be given notice thereof and opportunity to meet the same ? Where High Court did not specify ground of attack which plaintiff ought to have raised in first suit but instead had raised in second suit, held, bar of constructive res judicata not applicable.?
27. Further, it is held that res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order II Rule 2 C.P.C., requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other.
28. It is also held that constructive res judicata deals with grounds of attack and defence, which ought to have been raised, but not raised, whereas Order II Rule 2 C.P.C., relates to reliefs, which ought to have been claimed on the same cause of action, but not claimed.
29. The Apex Court in the said decision has also held that a suit cannot be dismissed as barred by Order II Rule 2 C.P.C., in the absence of a plea by the defendant to that effect and in the absence of an issue thereon.
30. Though the appellants / defendants raised a plea that the suit barred by Order II Rule 2 C.P.C., the Trial Court has framed an issue under Order IX rule 9 C.P.C., as Issue No.I, which will be dealt with in detail in the subsequent paragraphs.
31. As stated supra, according to the respondents / plaintiffs, Order II Rule 2 C.P.C., is a constructive res judicata. The object of Order II Rule 2 C.P.C., is two folds. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order II Rule 2 C.P.C., is to bar a plaintiff, who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
32. On perusal, it is seen that no issues have been framed with regard to Order II Rule 2 C.P.C., either by the Trial Court or by the First Appellate Court and as stated supra, the Issue No.I before the Trial Court was with regard to Order IX Rule 9 C.P.C. Taking into consideration the reliefs sought for in both the former suit as well as the present suit and following the decision in Alka Gupta (cited supra) that a suit cannot be dismissed as barred by Order II Rule 2 C.P.C., in the absence of an issue thereon, since the appellants / defendants have chosen to take the other issue viz., under Order IX Rule 9 instead of Order II Rule 2 C.P.C., as pleaded in the written statement, further on perusing the relief claimed in both the former suit and the present suit, on facts, that does not attract the ingredients of Order II Rule 2 C.P.C., and the fact that no issues have been framed either before the Trial Court or the First Appellate Court with regard to Order II Rule 2 C.P.C., and on the strength of the above referred decisions of the Hon'ble Supreme Court, the first portion of the substantial question of law No.II does not arise for consideration on the factual matrix of the case and accordingly held as against the appellants / defendants.
33. Coming to the second portion of the substantial question of law No.II that the suit is barred by Order IX Rule 9 C.P.C., in view of the fact that the earlier suit filed by the husband of the first plaintiff against the appellants / defendants herein was dismissed for default and thereby the respondents / plaintiffs being the legal representatives of the plaintiff in the former suit are precluded from filing of the fresh suit on the same cause of action (emphasis supplied).
34. In the decision in Ranjith Ammal (cited supra) followed in the decision G.Alagarsamy (cited supra), wherein it is held that:
?Code of Civil Procedure, 1908 (5 of 1908), Order 9, Rules 9 & 8 ? Decree against Plaintiff by default bars fresh Suit ? Plaintiff filed Suit for permanent injunction ? Plaintiff predecessor in title had already filed similar Suit against Defendant and same was dismissed for default ? Held, any Suit is dismissed for default, Plaintiff is precluded from bringing fresh Suit on same cause of action ? Whether bar created under Order 9, Rule 9 of CPC would also be applicable to assignee or a transferee of Plaintiff who instituted earlier Suit and dismissed for default ? Bar under Order 9, Rule 9 can be invoked against legal representative or assignees or transferees of Plaintiff, who filed earlier Suit ? Second Appeal dismissed.?
35. According to the appellants / defendants, the husband of the first plaintiff filed the former suit, in O.S.No.977 of 1990, seeking the relief of declaration of title and permanent injunction against the appellants / defendants and the suit was dismissed for default on 17.11.1992 and thereafter, the present in O.S.No.405 of 1998 was filed on 03.08.1998 and therefore, the present suit, which is the subject matter of this appeal, is hit by Order IX Rule 9 C.P.C.
36. In order to substantiate the said plea on factual ground, the appellants / defendants have marked a carbon copy of the plaint in O.S.No.977 of 1990, carbon copy of the written statement filed therein and the certified copy of the decree of the said suit as Exs.B2, B3 and B6 respectively. As per Ex.A6, the husband of the first plaintiff died on 20.07.1995. The former suit filed by Ramasamy Thevar in O.S.No.977 of 1990 was dismissed for default on 17.11.1992. Three years thereafter, Ramasamy Thevar died and three years after his demise, his legal heirs, who are the respondents / plaintiffs have filed the present suit for injunction alone.
37. Though necessary pleadings have been raised in the written statement, no specific plea was raised to the effect that the suit is hit by Order IX Rule 9 C.P.C. However, the Trial Court has chosen to frame an issue with regard to Order IX Rule 9 C.P.C., as Issue No.I and gave a finding that the present suit is not hit by Order IX Rule 9 C.P.C., in view of the different cause of action between the former suit and the present suit and held that the present suit is maintainable. As against the said finding, the appellants / defendants have not filed any cross objection in the appeal filed by the respondents / plaintiffs.
38. Be that as it may, at the time of admission of the second appeal, this Court has formulated two substantial questions of law as extracted above.
39. The appellants / defendants, in their written statement, have specifically pleaded that the husband of the first plaintiff filed O.S.No.977 of 1990 for the relief of declaration of his title over the suit property and for permanent injunction against the appellants / defendants herein and the said suit was dismissed for default on 17.11.1992 and by an operation of law under first portion of Order IX Rule 9 C.P.C., the second suit on the very same cause of action by the legal representatives of the said Ramasamy Thevar is not maintainable. Like Order II Rule 2, Order IX Rule 9 C.P.C., is incorporated to defend the plaintiff from re-agitating an issue again and again and to ensure that no defendant is sued and vexed twice in regard to the same cause of action.
40. It is to be stated that the basic requirements of Order IX Rule 9 C.P.C., is that the cause of action in later suit must be same as that in the previous suit. Similarity of ingredients for claiming reliefs in two suits is also relevant, but similarity of pleadings in two suits is not relevant for applicability of bar. When such a plea has been raised, a duty is cast upon the Court to examine the cause of action, relief claimed, legal provisions applicable for grant of relief sought for and the entire factual matrix of both the suits.
41. Under Order IX Rule 9 C.P.C., emphasis has been given on ?in respect of the same cause of action?. As per the decisions in G.Alagarsamy (cited supra and Ranjith Ammal (cited supra), the law decided by the Hon'ble Supreme Court and followed by this Court is to the effect that the bar created under Order IX Rule 9 C.P.C., is also applicable to the legal representatives of the plaintiff, who instituted the former suit, which has been dismissed for default. It is not in dispute that the present plaintiffs are the legal representatives of the deceased Ramasamy Thevar, who was the plaintiff in the earlier suit and the said suit was dismissed for default.
42. Now, the question relates to ?cause of action?. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Every thing which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But, it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
43. The term ?cause of action?, therefore, indicates not a piece of evidence on events, but it is a bundle of events. It has no relation to the evidence set up by the defendant nor it depends upon the character of the relief prayed for. [Bond Food Products Private Ltd. v. M/s.Planters Airways Ltd., 2004 (4) CTC 103 ; AIR 2004 Mad. 538; 2004 (3) MLJ 306; 2004 (2) LW 663]. In other words, a bundle of facts which it is necessary for the plaintiff to prove is order to succeed in the suit.
44. As stated supra, the Court should examine the cause of action, reliefs claimed and the entire factual matrix of the case.
45. When the defendants raise a plea that they are entitled for the defence under Order IX Rule 9 C.P.C., a duty is cast upon them to prove the said plea. In other words, burden of proving that they are entitled to the bar created under Order IX Rule 9 C.P.C., is cast upon the defendants and they have to prove that the former suit and the present suit are arising out of the same cause of action and the suit properties are one and the same. In order to buttress the burden of proof, the appellants / defendants have marked a carbon copy of the plaint in O.S.No.977 of 1990, carbon copy of the written statement filed therein and the certified copy of the decree of the said suit as Exs.B2, B3 and B6 respectively, through D.W.1 / third defendant in the suit. During the cross-examination, D.W.1 has confronted with the above said documents and deposed that i& tHf;fpy; rk;ge;jg;gl;l brhj;jpw;Fk; jhth brhj;jpw;Fk; rk;ge;jky;y vd;why; rhpay;y;. gp6f;Fk; jhth tHf;fpw;Fk; rk;ge;jk; my;y vd;why; rhpay;y. gp6f;Fk; ne;j tHf;fpw;Fk; rk;ge;jk; ny;iy vd;why; rhpay;y.
46. The vendor of the defendants was examined as D.W.2. In his cross- examination, he has admitted that tPugj;jpu Bjth; vA;fs; brhj;ij tpw;ftpy;iy. tPugj;jpud; jdJ brhj;ij tpw;wjpy;jhd; thjp mDgtk; bra;J tUfpwhh; vd;why; rhpjhd;. vd;dplk; fhl;lg;gLk; xg;ge;jj;jpy; cs;sJ vdJ ifbahg;gk; jhd;. i& MtzkhdJ ehDk; thjpapd; fpuajhuh; tPugj;jpuDk; Bghl;Lf;bfhz;l xg;ge;jk; vd;why; rhpjhd;. ehd; 1k; gpujpthjpf;F tpw;w brhj;jpy; bjd;g[wj;jpy; fpHBkyhf 1 1/2 mo mfy ghij Bghlg;gl;Ls;sJ vd;W brhd;dhy; rhpjhd;. Mf thjp fpiuajhuh; 1 1/2 moa[k; ehA;fs; vA;fs; nlj;jpy; 1 1/2 moa[k; bkhj;jk; 3 mo bghJthf itj;J mDgtk; bra;tJ vd;W i& xg;ge;jj;jpy; fz;Ls;sJ vd;why; rhpjhd;.
47. At the risk of repetition, but for the sake of clarity, it is to be stated that for the stand taken by the appellants / defendants, in their written statement, they have marked Exs.B2, B3 and B6 and during the cross- examination D.W.1 (third defendant), he was specifically confronted by the plaintiffs' counsel that the suit property is different from the suit property in the earlier suit. In other words, the suit property described in Ex.B6 Decree copy in the former suit is not that of the suit property in the present suit. In this connection, the same was also related to D.W.2 (vendor of the defendants) in the cross-examination as narrated above.
48. The description of property under Ex.B6 and description of property in the plaint are compared with. The description of the property in Ex.B6 is to the effect that the land in Survey No.381/7, on the northern 01 Cent out of 14 Cents (excluding the northern pathway measuring 1 + Feet to the entire east-west length of Survey No.381/7), bounded on the north by common pathway of the parties, east and south by the plaintiff's property and west by the houses of Palani Muruga Thevar, Rama Thevar and the Street.
49. The plaint schedule of the present suit consists of three items of properties. Item No.I is with regard to Survey No.381/7, out of 14 Cents northern portion of 07 Cents. While, Item No.II is relating to Survey No.381/3E, 01 Cent out of 08 Cents in Item Nos.I and II, the south-eastern 07 Cents and Item No.III is with regard to the land in Survey No.381/7 vacant site, out of 14 Cents, northern extreme of 01 Cent (emphasis supplied).
50. Thus, it could be seen on comparison of the suit properties in both suits that the land in Survey No.381/7 comes in Item No.I as well as Item No.III, while 07 Cents in northern portion is shown as Item No.I. The northern extreme of 01 Cent with different boundaries is shown as Item No.III. During the cross-examination of P.W.1 as well as D.W.1, they have identified the land in dispute is Item No.III alone. The Trial Court has come to the conclusion that the present dispute in the present suit in O.S.No.405 of 1998 is relating to Item No.III alone, which is surrounded by the fencing and both the parties have claimed that they have put up fencing. As found in Ex.B6, the subject matter of 01 Cent in Survey No.381/7 is bounded on the north by common pathway of the parties to the suit. It is specifically stated in the description of the property that excluding northern pathway measuring 1 + Feet to the entire east-west length of Survey No.381/7. This was specifically put to the vendor of the defendants, who was examined as D.W.2 and answer was elicited from him as extracted above, which goes to show that the 01 Cent, which is the subject matter of the earlier suit was bounded on the north by common pathway as spoken to by D.W.2, who is none other than the vendor of the defendants. While the subject matter of the present suit, which is identified and consented by both the parties being Item No.III is the land measuring 01 Cent on the extreme north of Survey No.381/7, which is bounded on the north by vacant site of Guruvammal, namely, first defendant. In view of the specific admission made by D.W.2, in his cross-examination, regarding recitals in the boundaries of suit properties described in the decree granted in the former suit as extracted above, the suit property in Ex.B6 is bounded on the north by common pathway, while Item No.III of the present suit schedule is bounded on the north by vacant site of Guruvammal, which clearly demonstrates that the land in question in the present suit is different from the land that was the subject matter of the former suit.
51. In the present suit, it is the specific case of the respondents / plaintiffs that three years after the death of Ramasamy Thevar (husband of the first plaintiff), the first appellant / first defendant Gurugammal, whose property is situated on the northern side of this 01 Cent, tried to interfere with their peaceful possession and enjoyment of the suit property on 23.07.1998 and therefore, they have moved the present suit.
52. In view of the difference in the description of properties between former suit and the present suit, which is shown as Item No.III, as discussed above, the cause of action as alleged in the plaint in respect of this northern extreme of 01 Cent, which is bounded by the vacant side of Guruvammal on the northern side, this Court finds that the suit property is different and distinct from the former suit and the cause of action as alleged by the respondents / plaintiffs also goes to show that it is different and distinct.
53. In the preceding paragraphs, this Court, taking into consideration of the evidence of the revenue witness, namely, P.W.2 coupled with the documentary evidence of Exs.A1 and A2 and the revenue records of Exs.A7 to A9, has come to the conclusion that the suit property in Survey No.381/7 is exclusively belonged to the respondents / plaintiffs and also stands corroborated by the report and sketch of the Advocate Commissioner in Exs.C4 and C5 to the effect that the fencing lies on the northern extreme of Survey No.381/7, which belongs to the respondents / plaintiffs and north of that fencing alone, the land belongs to Guruvammal is situated, which also corroborates the northern boundary as described in the present suit, goes to the effect that the present suit is not the subject matter of the former suit for reasons discussed supra and the present suit property is different one, which is bounded on the north by vacant site of Guruvammal and he made an attempt to interfere with the respondents / plaintiffs' possession resulting in filing of the present suit and therefore, the ingredients of Order IX Rule 9 C.P.C., are not satisfied and in the absence of any other witness or evidence adduced by the appellants / defendants to discharge their burden of proof cast upon them, this Court comes to the conclusion that while the respondents / plaintiffs have successfully demonstrated different boundaries to the suit property and also the fact that they are the owners of the land in Survey No.381/7 and their possession and the present 01 Cent of land is not the subject matter of the earlier suit through the evidence of D.Ws.1 and 2 and on comparison of the description of properties in the present suit and the former suit, the cause of action for the different suits are different and distinct and the description of the properties are also different and distinct and therefore, the appellants / defendants are not entitled to the benefit of the bar under Order IX Rule 9 C.P.C., since what was specifically barred under Order IX Rule 9 is a fresh suit on the very same cause of action and hence, it is held that the substantial question of law No.II has not been proved in the manner known to law by the appellants / defendants and hence, it is negatived against them.
54. In view of the discussions in the preceding paragraphs, this Court holds that the First Appellate Court has properly considered the factual matrix of the case and come to the conclusion that the land in Survey No.381/7, to an extent of 01 Cent, is absolutely belongs to the respondents / plaintiffs and the fencing as noted by the Advocate Commissioner in Exs.C4 and C5 lies on the exact border of GH line segregating the lands in two different survey numbers, which is well considered and well merited and does not warrant any interference of this Court. Both the substantial questions of law have been held against the appellants / defendants and the appeal is devoid of merits and it is liable to be dismissed.
55. In the result, the second appeal is dismissed and the Judgment and Decree, dated 30.03.2005, made in A.S.No.269 of 2004, by the learned III Additional Subordinate Judge, Madurai, reversing the Judgment and Decree, dated 20.09.2004, made in O.S.No.405 of 1998, by the learned District Munsif, Thirumangalam, are confirmed. No costs.
To:
1.The III Additional Subordinate Judge, Madurai.
2.The District Munsif, Thirumangalam..