JUDGMENT Ratnam, J. 1. In this second appeal at the instance of Plaintiffs 1 to 3 in O.S. No. 1901 of 1970, District Munsif's Court, Namakkal, the only question that arises for consideration is, whether the lower appellate court was right in its conclusion that by reason of the adjudication in O.S. No. 313 of 1.943, the appellants would be precluded from agitating their claim made in the suit. 2. The suit was for a declaration that the appellants and respondents 4 and 5 are entitled to the suit property of an extent of 19 acres and 1.3 cents in S. No. 23/2 in Molapalayam village and for a permanent injunction restraining respondents 1 to 3 herein from interfering with their possession and enjoyment of the same. In the written statement filed by respondents 1 to 3, they pleaded that as a result of the prior proceedings culminating in S.A. No. 243 of 1947, the appellants would be precluded by the principle of resjudicata from agitating the question of title as well as injunction. On the question of the suit being barred by res judicata the trial court found on 12.2.1973 that the principle of res judicata will not operate. Against that C.R.P. No. 342 of 1973 was filed by the appellants and it was dismissed with the observation that it was unnecessary to go into the correctness or otherwise of the finding of the court below regarding res judicata and that the trial court will proceed to dispose of the other issues as well and the aggrieved party can always challenge the correctness of the decision, inclusive of the decision on the question of res judicata. Subsequently, the trial court considered the merits of the claim of the appellants and ultimately found that the appellants are entitled to the reliefs of declaration as well as injunction as prayed for by them. However on appeal by respondents 1 and 2 herein, the lower appellate court found that the decision in O.S. No. 313 of 1943 would operate as res judicata and it is therefore not necessary to go into the other questions relating to the title put forth by the appellants as well as the relief of injunction prayed for by them. In that view, the lower appellate court dismissed the suit, the correctness of which is challenged in this second appeal. 3. In that view, the lower appellate court dismissed the suit, the correctness of which is challenged in this second appeal. 3. The properties involved in O.S. No. 313 of 1943 comprised the entire properties in S. No. 23. The suit was laid by the appellants for a permanent injunction in respect of an extent of 139 acres and odd, of which the suit properties form part and the defendants in that suit raised the plea that they are entitled to a customary right of grazing cattle. An issue was raised with reference to that customary right of grazing and evidence was let in and a finding was rendered that the defendants in O.S. No. 313 of 1943 were entitled to a customary right of pasture. This finding was also affirmed in appeal. When the matter came up before this Court in S. No. 243/47, as could be seen from Ex.B.7. this Court passed the following Order: The inference of customary right of grazing is not one, which cannot be drawn on the evidence. This does not mean that the plaintiff has not used his usual rights otherwise, but they will be subject to superior rights of grazing on the part of the villagers. If reasonable arrangements are made for the exercise of the latter rights inclusive of setting apart of sufficient area, exclusively, for such rights out of the total extent, the plaintiff will be within his rights. The second appeal fails and is dismissed with costs. It is thus seen from the final judgment of this Court that the rights of the plaintiff in O.S. No. 313 of 1943 were preserved, but subject to the right of grazing on the part of the villagers. This cannot be taken to be negation of the right claimed by the plaintiff in O.S. No. 313 of 1943. This is further made clear by the observation in the judgment that if arrangements are made for the exercise of the grazing rights by setting apart sufficient area, out of the total extent, the plaintiff will be well within his rights. This is further made clear by the observation in the judgment that if arrangements are made for the exercise of the grazing rights by setting apart sufficient area, out of the total extent, the plaintiff will be well within his rights. In other words the right of the plaintiff to the property, subject to the right of grazing by the villagers, has been upheld and at the same time, the customary right of grazing put forth by the defendants in O.S. No. 313 of 1943 had also been recognised, in respect of which, a suggestion had been made that sufficient area may be set apart so that the plaintiff in O.S. No. 313 of 1943 may fully enjoy his rights with reference to the rest of the area. The adjudication, in my view, does not negative the right of the plaintiffs to the property, but merely declares that their rights will be subject to the right of grazing established by the defendants in O.S. No. 313 of 1943 and no more. In order to enable the defendants in O.S. No. 313 of 1943 to exercise that right of customary grazing, the setting apart of an area exclusively for that purpose, had also been suggested. That is how the judgment of this Court under Ex.B.7 has to be under stood and not as negativing the claim of the appellants of their title to the property or accepting the case of the defendants that they had right over the said property for the customary grazing of cattle. Looked at from that point of view, the lower appellate court was in error in holding that the present suit is barred by the principles of res judicata on account of the adjudication under Ex.B.7. That conclusion of the lower appellate court cannot on a proper reading of Ex.B.7 be sustained and since the lower appellate court has not gone into the merits of the controversy between the parties and had proceeded to allow the appeal and dismiss the suit only on the question of res judicata, it becomes necessary to set aside the judgment and decree of the lower appellate court and remit the appeal for reconsideration on merits. Consequently, the second appeal is allowed, Judgment and decree of the lower appellate court are set aside and the appeal is remitted to the court below for reconsideration. Consequently, the second appeal is allowed, Judgment and decree of the lower appellate court are set aside and the appeal is remitted to the court below for reconsideration. There will be however no order as to costs. The appellant will be entitled to the refund of the court fee paid on the memorandum of second appeal.