For creating bar of suit parties to both the suits should be same.

Ganesan, the plaintiff is the appellant herein. He filed the suit for partition and separate possession. The suit was dismissed by the trial Court. Aggrieved by the same, he filed an appeal before the lower appellate Court, which in turn dismissed the same confirming the decree passed by the trial Court. Hence, the second appeal.

2. The case of the plaintiff is as follows:

"The suit property and the property at Kulamangalam village originally belonged to one James Chelliah. James Chelliah had two wives. The first wife is Arputham. Ganesan, the plaintiff married the daughter of one Janarthanam, the brother of Arputham, the first wife of James Chelliah. His second wife's name is Jesumani Ammal. Issac and Devadasan, the defendants in the present suit are the brothers of the said Jesumani Ammal. On 25.3.1966 James Chelliah executed a Will bequeathing one half of his share to the plaintiff and allotting the other half to his second wife Jesumani Ammal. He died on 16.2.1968. Thereafter, Jesumani Ammal executed a Will bequeathing her share in favour of the second defendant. After the death of Jesumani Ammal, Devadasan, the second defendant filed a suit for partition in respect of the properties bequeathed in his favour. Ultimately, the Civil Court concluded that the Will executed by Jesumani Ammal is not a valid one and the Will executed by James Chelliah is the only valid and true document. So, under the Will executed by James Chelliah, the plaintiff would be entitled to half share in the suit schedule property, namely house at Madurai. Since the suit property is in possession and enjoyment of the first defendant, the plaintiff filed the suit against both the defendants."

3. The case of the first defendant is as follows:

"The suit property belonged to James Chelliah. Earlier, both Ganesan, the plaintiff and Devadasan, the second defendant filed separate suits on the basis of the Will and the plaintiff obtained the decree in respect of half of the share in Kulamangalam properties in the said suit. Since the plaintiff did not claim any share in the suit property situate at Madurai, he is barred from claiming share now under Order 2, Rule 2 read with Section 11(4) C.P.C. Hence, the suit is liable to be dismissed."

4. As far as the second defendant is concerned, since despite service of summons, he did not choose to appear, he was set ex parte.

5. On the basis of the pleadings of the respective parties, the necessary issues were framed by the trial Court. During the course of trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A10. On the other side, the first defendant examined himself as D.W.1 and marked Exs.B1 to B5.

6. On consideration of the evidence on record, the trial Court dismissed the suit mainly on the ground that the suit is not maintainable in view of the bar contemplated under Order 2, Rule 2 read with Section 11(4) of C.P.C. Confirming the said finding, the lower appellate Court as well dismissed the appeal. Hence, this second appeal.

7. At the time of admission, the following substantial questions of law have been formulated by this Court by the order dated 29.1.1991:

1) Whether the trial Court and the first appellate Court are right in holding that the present suit is barred by Order II Rule 2 of the Code of Civil Procedure, in view of the judgments in A.S.Nos.44 of 1978 and 94 of 1978 on the file of the Sub Court Madurai?

2) Whether the trial Court and first appellate Court are correct in applying the principles laid down in BASAVANNA vs. DODDALINGAPPA (A.I.R. 1928 Madras 584) to the facts of the present case?

8. In elaboration of these substantial questions of law, it is vehemently contended by Mr.Ram Mohan,the learned senior counsel appearing for the appellant, that the finding given by both the Courts below with reference to the bar under Order 2, Rule 2 read with Section 11 (4) C.P.C. is wrong and perverse, inasmuch as the facts of the present case would not attract