JUDGMENT (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the learned Judge of the Sub-Court, Ranipettai, Vellore District, dated 10.12.2001 passed in A.S.No. 42 of 1999 confirming the decree and Judgment of the learned Judge of the District Munsif Court of Arcot, dated 19.4.1999 passed in O.S.No. 292 of 1996.) 1. The 1st defendant, The Special Officer, C 1252, Arcot Co-operative Marketing Society Ltd., Arcot, in O.S. No. 292 of 1996 on the file of the District Munsif Court, Arcot is the appellant herein. 2. The said suit in O.S. No. 292 of 1996 had been filed by the 1st respondent herein, Ponnusamy, seeking permanent injunction restraining the 1st defendant therein/appellant herein/ The Special Officer, C 1252, Arcot Co-operative Marketing Society Ltd., Arcot, from preventing his/the plaintiff’s right of way over the road running East-West on the Southern side of the plaintiff’s property and on the Northern side of the 1st defendant’s property, and measuring 12 ft., in breadth and about 200 ft., in length, called Nawab Devadi Street. 3. By Judgment dated 19.04.1999, the District Munsif, Arcot decreed the suit with costs. 4. The 1st defendant in the suit/appellant herein then filed A.S. No. 42 of 1999 before the Sub Court, Ranipet. By judgment dated 10.12.2001, the Sub Judge, Ranipet, dismissed the appeal suit with costs. 5. The 1st defendant in the suit then filed the present second appeal. 6. The only substantial questions of law which arises for consideration is “Whether the judgment and decree in the earlier suit in O.S. No. 104 of 1995 would act as res judicata in deciding the issues in O.S. No. 292 of 1996 from which the present second appeal has emanated ?” 7. In the plaint in O.S. No. 292 of 1996, the plaintiff claimed that to the south of his property lies the Nawab Devadi Street and the godown of the 1st respondent. He claimed that the said road, measuring 12 ft., in breadth and about 200 ft., in length runs east-west and has been described as a road in the plan of the 2nd defendant, the Arcot Municipality. He further claimed that the 1st defendant was trying to close the road by putting a fence. This had necessitated institution of the suit seeking the relief as stated above. 8. He further claimed that the 1st defendant was trying to close the road by putting a fence. This had necessitated institution of the suit seeking the relief as stated above. 8. In the written statement of the 1st defendant, the facts stated had been denied and disputed. It was specifically denied there was a road to the south of the plaintiff’s property. It had been claimed that the 1st defendant had earlier filed O.S. No. 104 of 1995 before the District Munsif Court at Ranipet with respect to identical property and had obtained a decree against the plaintiff. It had therefore been claimed that the suit was barred by res judicata. 9. The 2nd defendant filed a written statement claiming there was a road and that the road vested with the Arcot Municipality. One of the primary issues framed by the trial court was whether the suit was barred by res judicata in view of the judgment in the earlier suit in O.S. No. 104 of 1995. 10. During trial, the plaintiff examined one witness and the 1st defendant examined three witnesses. Both sides filed their respective title documents. The 1st defendant also filed as Ex. B6 the report and sketch filed by the Advocate Commissioner in the earlier suit in O.S. No. 104 of 1995 and as Ex. B7 the decree copy alone of the earlier suit in O.S. No. 104 of 1995. 11. On analysis of the pleadings and oral and documentary evidence, the trial court came to a definite finding that there was a road to the south of the plaintiff’s property, which is also evidenced by the boundary as reflected in Ex. A1, the title deed of the plaintiff dated 17.08.1978 and in Ex. A2, the plan for construction of house submitted by the plaintiff and as approved by the 2nd defendant. The title deed of the 1st defendant was of the year 1960. There was no road at that time. 12. It was also found as a fact that the properties in both O.S. No. 104 of 1995 and in the present suit were different and that therefore the judgment in the earlier suit cannot act as res judicata. The suit was therefore decreed with costs. 13. The 1st defendant then filed A.S.No. 42 of 1997 before the Sub Court at Ranipet. The suit was therefore decreed with costs. 13. The 1st defendant then filed A.S.No. 42 of 1997 before the Sub Court at Ranipet. Again the learned Sub Judge, on reappreciation of the pleadings and evidence presented, found as a fact that the principle of res judicata cannot be applied in the instant case to non suit the plaintiff. It was again found as a fact that a road, the Nawab Devadi Street lies to the south of the property of the plaintiff. The pleading of the 2nd defendant that the road vested with the Municipality was also noted. The appeal suit was dismissed with costs. 14. The 1st defendant then filed the present second appeal. 15. The only substantial question of law which arises for consideration is Whether the judgment and decree in the earlier suit in O.S. No. 104 of 1995 would act as res judicata in deciding the issues in O.S. No. 292 of 1996 from which the present second appeal has emanated? 16. In V. Rajeshwari vs T.C. Saravanabava reported in 2004 (1) SCC 551 , the Hon’ble Supreme Court had observed and held as follows: “12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato [ AIR 1936 PC 258 : 1936 All LR 786] , Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi [ AIR 1948 PC 3 : (1947) 2 MLJ 511 ] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [ AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal [ (1970) 3 SCC 656 ] ….. “ 13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal [ (1970) 3 SCC 656 ] ….. “ 13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [ (1976) 4 SCC 780 ] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [ AIR 1964 SC 1810 : (1964) 7 SCR 831 ] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887- 88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887- 88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.” (Emphasis supplied) 17. In the instant case, the appellant herein/1st defendant in the suit had produced only a copy of the decree in O.S. No. 104 of 1995. A reading of the same shows it was an exparte decree. The pleadings in the said suit had not been filed before the court during trial. A copy of the judgment had not been filed. 18. The trial court had, on comparing the schedule of the properties in the instant suit and in O.S. No. 104 of 1995 had given a definite finding that the properties are different. That fact had been confirmed by the first appellate court. 19. I hold that therefore, it would be extremely inappropriate on the part of this court to reappreciate the facts, particularly when perversity had not been established. 20. Thus, I hold that the judgment in the earlier suit in O.S. No. 104 of 1995 would not act as res judicata in so far as the issue that the road is a public road is concerned. The substantial question of law is answered accordingly. The 1st respondent herein/plaintiff cannot be prevented from using the same. However, there has got to be reasonable restrictions in such usage since the road vests with the 2nd respondent/2nd defendant/Arcot Municipality, I would therefore place a caveat that both the appellant/1st defendant and the 1st respondent/plaintiff should not put up any construction obstructing free passage and usage of such road by either party or by any other general public. 21. With the above observations, the second appeal is dismissed with costs. The judgments and decree of both the courts below are upheld and confirmed.