Judgment This second appeal arises out of the concurrent findings of the Courts below dismissing the plaintiffs suit and declining to grant Permanent Injunction. Unsuccessful plaintiffs are the appellants. .2. The suit property relates to a common pathway in S.No.30/1 measuring North South 3 yd; East West 25 yd; out of North South 25 yd and East west 15 yd which belongs to the family of the plaintiff and the Defendant. The parties are related as under:- .Maruva Udayar .3. Briefly stated case of the plaintiff is as follows :- Due to financial crisis, Maruvu Udayar executed two Sale Deeds in 1934 and transferred all his properties in the name of his first wife Ariyathammal, mother of the Defendant. It is the further case of the plaintiff that after the death of Maruva Udayar, all four sons of Maruva Udayar entered into an oral partition before the Panchayatars, in the presence of Ariyathammal. As per the said oral partition, all four sons are in possession and enjoyment of their respective shares. As per the said oral partition, house and vacant land in S.No.30/1 – 25 yd x 15 yd were allotted to the three sons, except the Defendant. It is the further case of the plaintiffs that the Defendant was allotted some other property in the same village. In 1970, Defendant had purchased a hut from Kanniammal, wife of Govindasami under Ex.B-4. Plaintiffs property is situated on the North of the suit schedule property. Alleging that under the pretext of reconstruction of demolished hut, the Defendant is trying to extend the hut by encroaching the suit schedule property, which is used as common pathway, plaintiffs have filed the suit for Permanent Injunction. 4. The Defendant admitted that the suit schedule property along with the house situated in S.No.30/1 was transferred in the name of Ariyathammal, under Ex.B-1, Sale Deed 011. 1934. Thereafter, the suit property was settled in favour of her three sons and that the first plaintiff did not have any right. According to the Defendant, the Defendant is entitled to the suit schedule property as per Exs.B-3 and B-4. The Defendant alone has been in possession and enjoyment of the hut as well as the suit property. Alleging that the suit property was never used as common pathway, the Defendant prayed for dismissal of the suit. 5. On the above pleadings, relevant issues were framed. The Defendant alone has been in possession and enjoyment of the hut as well as the suit property. Alleging that the suit property was never used as common pathway, the Defendant prayed for dismissal of the suit. 5. On the above pleadings, relevant issues were framed. The trial Court dismissed the suit holding that the plaintiffs have not produced any document to show that they are in possession of the suit property. The trial Court further held that there is a wall in the suit property and the plaintiffs had not sought for mandatory injunction and therefore, the plaintiffs cannot seek for Permanent Injunction. 6. Aggrieved, the plaintiffs have preferred appeal in A.S.No.14/1991. Confirming the findings of the trial Court, the Appellate Court also held that the plaintiffs have not proved that there was already a Panchayat and partition was effected. Adverting to Exs.A-1 to A-3 and Exs.B-1 to B-4, the Appellate Court held that there is no mention of common pathway in those documents. The lower Appellate Court recorded a specific finding that there is no mention of common pathway in Ex.A-11. Observing that the plaintiffs have not proved that suit property is used as common pathway and plaintiffs have not impleaded all necessary parties, the lower Appellate Court dismissed the appeal, confirming the findings of the trial Court. 7. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration:- "1. Whether the Courts below are right in ignoring the findings rendered in O.S.No.272/1978 on the file of the court of District Munsif, Gingee in respect of the suit property which was between the parties and successors in the present action? 2. Whether the Courts below are right in dismissing the suit on the ground of non-jonider of certain parties without giving a finding whether they are necessary parties?" 8. In the Courts below, though extensive arguments were advanced on the binding nature of the Judgment in O.S.No.272/1978 and the appeal arising thereon in A.S.No.60/1980, the Courts below did not record any findings as to whether the Judgment in the earlier suit would operate as resjudicata. In the Second Appeal, Justice Prabha Sridevan by order dated 03.03.2006 has called for findings as to the effect of Judgment of earlier suit in O.S.No.272/1978. In the Second Appeal, Justice Prabha Sridevan by order dated 03.03.2006 has called for findings as to the effect of Judgment of earlier suit in O.S.No.272/1978. By order dated 31.08.2006, the lower Appellate Court recorded the finding that the Judgment in O.S.No.272/1978 would be binding upon the parties and the findings in O.S.No.272/1978 would operate as resjudicata. 9. Challenging the concurrent findings of the Courts below, the learned Counsel for the Appellant contended that the Courts below erred in holding that the plaintiffs have not proved their possession with respect to the common pathway. It has been pointed out that there is a clear mention of pathway in Ex.A-11 Sale Deed dated 10. 1966 in favour of the first plaintiff. The learned Counsel further submitted that Ariyathammal had no right to execute the Settlement Deed in favour of her sons which issue was settled between the parties in the earlier suit O.S.No.272/1978 and while so, the Courts below erred in ignoring the findings in the earlier suit. The learned Counsel would further submit that as per the oral partition, the plaintiffs are each entitled to 1/3rd share in the property in S.No.30/1 – 25 yd x 15 yd and that as co-owners, they are entitled to use the suit property as common pathway. 10. Submitting that in the earlier suit O.S.No.272/1978, present suit S.No.30/1 was not included as suit property, the learned Counsel for the respondent/ Defendant would contend that Defendant has derived right and title in S.No.30/1 by purchase from Kanniammal under Ex.B-4 - Sale Deed. The learned Counsel would further submit that the earlier suit O.S.No.272/1978 cannot operate as resjudicata. It was pointed out that property of Ariyathammal was settled in favour of three persons and the plaintiffs have no manner of right in the suit property to use as common pathway. 11. Suit property S.No.30/1 originally belonged to Maruva Udayar. The said Maruva Udayar had executed Ex.A-1 Sale Deed dated 011. 1934. The total extent of property is North South 15 yd; East West 25 yd. Ariyathammal had executed Settlement Deed Ex.B-1 dated 14.07.1966 settling North South 5 yd; East West 25 yd under Ex.B-2 Settlement Deed [dated 14.07.1966]. Ariyathammal had settled North South 10 yd East West 25 yd in favour of Annamalai, father of the second plaintiff. 12. Ariyathammal is said to have settled another extent of property in favour of Govindasami. Ariyathammal had executed Settlement Deed Ex.B-1 dated 14.07.1966 settling North South 5 yd; East West 25 yd under Ex.B-2 Settlement Deed [dated 14.07.1966]. Ariyathammal had settled North South 10 yd East West 25 yd in favour of Annamalai, father of the second plaintiff. 12. Ariyathammal is said to have settled another extent of property in favour of Govindasami. That Settlement Deed has not been produced. Under Ex.B-3 Sale Deed dated 25.07.1964, the said Govindasamy had sold North South 12 yd; East West 25 yd, to his wife Kanniammal. In turn, the said Kanniammal under Ex.B-4 Sale Deed [dated 20.05.1970] sold the said 12 yd x 25 yd in favour of the Defendant. The Defendant claims right and title to the property in S.No.30/1 by virtue of Ex.B-1 [dated 14.07.1966] and Ex.B-4 Sale Deed [20.05.1970]. 13. As noted earlier, as per Ex.A-1 Sale Deed, an extent of property North South 15 yd x 25 yd was allegedly conveyed to Ariyathammal. Under Ex.B-1 settlement deed, Ariyathammal is said to have settled North South 5 yd in favour of the Defendant. Under Ex.B-2, Ariyathammal is said to have settled North South 10 yd in favour of Annamalai. While so, it is not known how ariyathammal could have settled further north-south 12 yards in favour of Govindasami. It is also not known how Govindasami could have derived right and interest in S.No.30/1 to an extent of North South 12 yd; East West 25 yd. It is relevant to note that the Defendant had not produced the Settlement Deed in favour of the Maruva Udayar. The Courts below have ignored this material aspect. .14. The main point urged in this second appeal is whether the Courts below were justified in ignoring the findings rendered in O.S.No.272/1978 in respect of the suit property. According to the plaintiffs, suit property along with other properties initially belonged to their father Maruva Udayar and due to some financial crisis in the family, the property was transferred in the name of his wife Ariyathammal under two registered Sale Deeds dated 011. 1934 [Ex.A-1]. It is the further case of the plaintiffs that after the death of Maruva Udayar, oral partition was effected before Panchayatars and as per the oral partition, Ariyathammal and all the four sons of Maruva Udayar were in separate possession and enjoyment of all properties and that the Settlement Deeds were executed only to avoid confusion. 15. 1934 [Ex.A-1]. It is the further case of the plaintiffs that after the death of Maruva Udayar, oral partition was effected before Panchayatars and as per the oral partition, Ariyathammal and all the four sons of Maruva Udayar were in separate possession and enjoyment of all properties and that the Settlement Deeds were executed only to avoid confusion. 15. Earlier, the Defendant herein has filed O.S.No.272/1978 against his three brothers including the first plaintiff as well father of the second plaintiff seeking for a declaration that he is in possession and enjoyment of the properties as per the Settlement Deed executed by Ariyathammal in his favour i.e. Ex.B-1 in the present suit. The first plaintiff herein who was the third Defendant in the earlier suit has alleged oral partition before the Panchayatars. After considering the oral and documentary evidence, in the earlier suit, the trial Court and Appellate Court came to the conclusion that all properties belonged to Maruva Udayar and Ariyathammal was only a name lender to the said Sale Deeds. Plea of oral partition of the first plaintiff herein was accepted. As against the concurrent findings, the Defendant herein did not file any second appeal and therefore, the finding in O.S.No.272/1978 and the appeal A.S.No.60/1990 is binding upon all the parties. .16. In his Written Statement, the Defendant has alleged that the suit property belongs to him and that it was never used as common pathway. The defence is falsified by the recitals in Ex.A-11. Ex.A-11 dated 10. 1966 is the Settlement Deed in favour of the first plaintiff Arunachalam by Ariyathammal. Under Ex.A-11 Settlement Deed, Ariyathammal had settled 1/3rd share in North South 12 yd; East West 25 yd and the house thereon. Existence of common pathway is clearly embodied in Ex.A-11, as is seen from the following recitals:- .When there is clear mention about pathway in Ex.A-11, the trial Court erred in saying that there is no mention of common pathway in Ex.A-11. Findings of the trial Court is perverse and unsustainable. The Courts below erred in ignoring the vital piece of evidence i.e. recitals in Ex.A-11. .17. As noted earlier, Ex.A-1 Sale Deed in favour of Ariyathammal and Ex.B-1 Settlement Deed in favour of the Defendant and Ex.A-11 Settlement Deed in favour of the first plaintiff were all subject matter of dispute in the earlier partition suit O.S.No.272/1978. The Courts below erred in ignoring the vital piece of evidence i.e. recitals in Ex.A-11. .17. As noted earlier, Ex.A-1 Sale Deed in favour of Ariyathammal and Ex.B-1 Settlement Deed in favour of the Defendant and Ex.A-11 Settlement Deed in favour of the first plaintiff were all subject matter of dispute in the earlier partition suit O.S.No.272/1978. The parties adduced extensive oral and documentary evidence. In the suit O.S.No.272/1978, Courts have held that the suit properties and other properties were not self-acquired properties of Ariyathammal. In the earlier suit, Courts recorded concurrent findings, accepting the plea of oral partition of the suit properties and other properties amongst four sons of Maruva Udayar and enjoyment of the suit properties separately. Exs.A-2 and A-3 Judgment in O.S.No.272/1978 and A.S.No.60/1980 would prove that the oral partition as pleaded by the Defendants was upheld in the earlier proceedings. 18. By perusal of Exs.A-2 and A-3, it is seen that Ariyathammal was examined as DW-2 in the earlier suit O.S.No.272/1978. Ariyathammal herself has stated that after the death of Maruva Udayar, oral partition was effected and the plaintiff and Defendants are in possession and enjoyment of the property as per the oral partition. While so, the Courts below committed serious and substantial error in not adverting to the findings in the earlier suit O.S.No.272/1978 and failed to analyze the evidence in the light of findings in the earlier suit. 19. In the earlier suit, the present Defendant and the first Defendant [who was shown as the third Defendant in the earlier suit] were at loggerheads. Settlement Deed in favour of the Defendant marked as Ex.B-2 in the present suit was marked as Ex.A-1 in the earlier suit O.S.No.272/1978. Ex.B-1 though dated 14.07.1966, it was registered only on 110. 1966. Settlement Deed in favour of the first plaintiff Arunachalam, marked as Ex.A-11 in the present suit, was marked as Ex.B-5 in the earlier suit. In the earlier suit, the dispute mainly revolved around the present Ex.B-1 and Ex.A-11. In other words, Ex.B-1 - Settlement Deed in favour of the Defendants vis-a-vis Ex.A-11 Settlement Deed in favour of the first plaintiff was directly in issue in the earlier suit, as seen from paragraphs 7 and 8 of Ex.A-2. In the earlier suit, Courts below recorded findings that much weight cannot be attached to Ex.B-1, which was registered subsequent to Ex.A-11. In the earlier suit, Courts below recorded findings that much weight cannot be attached to Ex.B-1, which was registered subsequent to Ex.A-11. The findings in the earlier suit in respect of Ex.B-1 and Ex.B-11 are binding upon the parties. The Courts below committed serious error in not adverting to the findings in the earlier suit, especially in respect of the two crucial documents Ex.B-1 and Ex.A-11. 20. The learned Counsel for the respondent contended that the Judgment in O.S.No.272/1978 would not operate as resjudicata. The learned Counsel further submitted that the earlier suit related to S.No.30/5, whereas the present suit relates to S.No.30/1 and therefore, the earlier Judgment would not operate as resjudicata. No doubt the earlier suit relates to S.No.30/5. But the issues involved in the present case were directly and substantially in issue in the earlier proceedings. As pointed out earlier, Ex.B-1 Settlement Deed vis-a-vis Ex.A-11 Settlement Deed were directly and substantially in issue between the parties. As directed by this Court, the learned Subordinate Judge has gone into the various issues involved in both the suits and by the order dated 31.08.2006, recorded specific finding that the Judgment in the earlier suit O.S.No.272/1978 would be binding upon the parties and the same would operate as resjudicata/estoppel against the parties. In the light of the evidence and contentions and submissions, the findings recorded by the lower Appellate Court in its order dated 31.08.2006 as to the plea of resjudicata/estoppel is well balanced and merits acceptance. 21. Having failed in the earlier suit, it is not open to the Defendant to assail the recitals in Ex.A-11 Settlement Deed. As extracted in paragraph 16, existence of common pathway is embodied in Ex.A-11. The defence plea denying existence of common pathway has no basis. 22. The high handed action of the Defendant in attempting to put up new construction is shown by the Advocate Commissioners Report and Plan. The Commissioner had noted various features evidencing obstruction of the common pathway by the Defendant by trying to put up new construction. The defence plea denying existence of common pathway has no basis. 22. The high handed action of the Defendant in attempting to put up new construction is shown by the Advocate Commissioners Report and Plan. The Commissioner had noted various features evidencing obstruction of the common pathway by the Defendant by trying to put up new construction. The following features may be relevant to be noted:- .(i) Along with EF line, southern side of the plaintiffs tiled house is projected towards the south to an extent of about 1½ feet; .(ii) Commissioner has noted extension of construction work by the Defendant further North by 4½ feet; (iii) Commissioner had also noticed walls being put up on the eastern and western side and thereby, the Defendant attempted to block the pathway. As is seen from Exs.C-1 and C-2, plaintiffs have got backyard. Necessarily to go to the backyard and to maintain their southern side wall, the suit property has to be necessarily be used as a common pathway. Existence of common pathway is amply proved by the recitals in Ex.A-11. In my considered view, the Courts below have committed serious and substantial error in ignoring the recitals in Ex.A-11 and other evidence. 23. Lower Appellate court held that along GE HF i.e. eastern and western side, Advocate-commissioner had noticed Walls and the Plaintiffs have not sought for permanent injunction. Referring to AIR 1972 SC 2685 (Ram Saran v. Ganga Devi), lower Appellate court held that the Plaintiffs have not taken steps for amending the plaint for removal of Walls. The approach of lower Appellate court for non-suiting the Plaintiffs on the ground of not amending the plaint cannot be countenanced. Suit was filed on 11.09.1986. Advocate-commissioner had visited the suit property on 012. 1990. At the time of his visit, Advocate-commissioner had noticed newly put up mud Walls along GE HF line. Evidently, the mud Wall on GE HF portion must have been put up subsequent to the suit. When the Defendant had put up mud Wall subsequent to the suit, there was no necessity for the Plaintiffs to seek for mandatory injunction. In 1991 (1) M.L.J 31 (Palaniammal v. Pechimuthu and others), Justice Srinivasan (as is Lordship then was) has held that when there was encroachment subsequent to the suit, Plaintiff need not seek for recovery of possession. When the Defendant had put up mud Wall subsequent to the suit, there was no necessity for the Plaintiffs to seek for mandatory injunction. In 1991 (1) M.L.J 31 (Palaniammal v. Pechimuthu and others), Justice Srinivasan (as is Lordship then was) has held that when there was encroachment subsequent to the suit, Plaintiff need not seek for recovery of possession. In the present case, the alleged mud Wall being subsequent to the suit, lower Appellate court was not justified in dismissing the Plaintiffs suit on the ground that Plaintiffs have not amended the plaint seeking for mandatory injunction. 24. When the findings of the Court on facts are vitiated by non-consideration of relevant evidence, the High Court is not precluded from interfering with the concurrent findings. The findings of the Courts below is based on misreading of evidence and misapplication of law. There is failure of considering the important aspect i.e. binding nature of findings in O.S.No.272/1978. Courts below have failed to appreciate the findings of the Commissioners report and the consequences of such blocking of the common pathway and therefore, the concurrent findings of the Courts below are liable to be set aside. 25. In the result, the concurrent findings of the Courts below in A.S.No.14/1991 on the file of the Subordinate Court, Tindivanam, dated 112. 1994 (arising out of the Judgment and Decree, dated 21. 1991, made in O.S.No.315/1986 on the file of the District Munsif Court, Gingee) are set aside and this second appeal is allowed. The suit O.S.No.315/1986 is decreed as prayed for. No costs.