ANJILA Vs. CHELLAMMAL

JUDGEMENT

(1.) This is a defendants' appeal. The suit filed for partition was allowed by the trial Court and confirmed by the First Appellate Court. Aggrieved by the concurrent judgment, this second appeal is filed primarily on the ground of res judicata and ouster.

(2.) The parties before this Court are legal heirs of late Mr. K. Veerasamy and Late Mr. K. Kuppusamy who are the blood brothers. The suit properties were jointly purchased by Mr. K. Veerasamy and Mr. K. Kuppusamy in the year 1955. During their life time, the suit properties were managed by Mr. K. Kuppusamy, the father of the defendants since, Mr. K. Veerasamy, the father of the plaintiffs settled in Ooty. In the year 1999, when Mr. K. Veerasamy came to know that his brother Mr. K. Kuppusamy has not deposited his share of rental income in his bank account as promised, he requested for partition of the suit properties by metes and bounds and also caused pre-suit notice on 03.11.1999. In response to the said notice, Mr. K. Kuppusamy replied denying his brother's right seeking partition. Therefore, Mr. K. Veerasamy filed a suit for partition in O.S. No. 105 of 2000 which was re-numbered as O.S. No. 192 of 2004. Unfortunately, pending suit, both Mr. K. Veerasamy and Mr. K. Kuppusamy died and the suit was dismissed for default on 09.04.2003. The restoration petition filed by the plaintiffs in O.S. No. 104 of 2005 which is the subject matter of this appeal was dismissed on 30.11.2004. To avoid multiplicity of proceedings and delay, a fresh suit for partition was filed by the legal heirs of Mr. K. Veerasamy against the legal heirs of Mr. K. Kuppusamy.

(3.) The appellants herein in their written statement contested the suit on the ground that under Sec. 11 of C.P.C., the subsequent suit is barred by the principle of res judicata in view of the dismissal of the former suit O.S. No. 192/2004. In the statement, it is averred by the appellants that, dismissal of the restoration petition filed under Order 9, Rule 9 of C.P.C., not challenged by the respondents, so they have lost their right to file a fresh suit for the same relief.