Withdrawal without merits adjudication does not trigger res judicata; factual findings in second appeal stand absent legal error.

Withdrawal of a suit without permission to bring a fresh action does not create res judicata because there is no prior adjudication on the merits, even if other proceedings were pending when the suit was withdrawn. In second appeal, factual findings on ownership of the cul-de-sac were not to be disturbed absent ignored material evidence or legal error in construing the mortgage deed. The easement claim also failed on the facts, as no actual obstruction of the ventilators and waterspouts was proved. On that basis, interference with the trial court's dismissal of the injunction claim was unwarranted.

---

---

Issues: (i) Whether dismissal of the earlier suit on withdrawal operated as res judicata in the later suits; (ii) Whether the findings on ownership of the cul-de-sac and easement rights called for interference in second appeal and whether the injunction against obstruction of the ventilators and waterspouts was sustainable.

Issue (i): Whether dismissal of the earlier suit on withdrawal operated as res judicata in the later suits.

Analysis: The bar of res judicata requires a prior final adjudication on merits. Where a plaintiff withdraws or abandons a suit without obtaining permission to file a fresh suit, there is no adjudication on the issues and the dismissal does not carry a finding on merits. The mere fact that other suits were pending when the first suit was withdrawn did not alter that position.

Conclusion: The dismissal of the earlier suit on withdrawal did not operate as res judicata.

Issue (ii): Whether the findings on ownership of the cul-de-sac and easement rights called for interference in second appeal and whether the injunction against obstruction of the ventilators and waterspouts was sustainable.

Analysis: The challenge to the finding that the cul-de-sac belonged to one party was a challenge to fact. No material evidence had been ignored and no error in construing the mortgage deed was shown. As to the easement claim, the trial court had found that no actual obstruction of the existing right had been proved, and that finding was not disturbed. In those circumstances, the appellate interference with the trial court's dismissal of the suit for injunction was unwarranted.

Conclusion: No interference was called for with the finding on ownership, but the decree granting injunction against obstruction of the ventilators and waterspouts was not sustainable.

Final Conclusion: The appeals were disposed of by upholding the dismissal of the two appeals challenging the ownership finding and restoring the dismissal of the suit in the appeal concerning the alleged obstruction to the easement right.

Ratio Decidendi: Withdrawal of a suit without adjudication on merits does not attract res judicata, and findings of fact in second appeal are not to be disturbed in the absence of ignored material evidence or legal error.

---