Subsequent suit filed not barred by Order 23, Rule 1 or 3.

Plaintiff is the appellant in this second appeal.

2. He filed O.S. No.179 of 1975, on the file of the Principal District Munsifs Court, Padmanabhapuram, seeking partition of the plaint mentioned properties. He claimed one-fifth share in the suit properties. Items 1 and 2 in the plaint belong to the father of the plaintiff and defendants 1 to 3 and late Stephen Langton. Item 3 belongs to their mother, who is also now no more. It is said that the father executed a settlement deed in favour of his wife, i.e., his (plaintiff’s) mother, as evidenced by Ex.A-1 dated 14. 1942. It is said that on the death of the mother, items 1 to 3 devolved on them along with their father who had a widower estate. Father was also dead on the data of suit and, therefore, the plaintiff claims one-fifth share in the items. It is also averred in the plaint that the plaintiff earlier filed a suit in the District Munsif’s Court, Padmanabhapuram as O.S. No.259 of 1967. That suit was dismissed as settled out of court. But the settlement did not take place and, therefore, the institution of the earlier suit is not a bar for instituting the present suit.

.3. In the written statement filed by the defendants 3, 4 and 8, they disputed the right of the plaintiff to claim partition mainly for the reason that he filed earlier a suit in O.S. No.259 of 1967 and later withdrew the same as settled out of court. According to them, the present suit is barred either on the principle of res judicata or estoppel. They also put forward a contention that some of the items did not belong to their mother. According to them, Ex.A-1 was not acted upon and the same was cancelled by their late father who has executed other documents in favour of his sons. They also put forward a contention on the ground of adverse possession and limitation. These are the common contentions taken by all the defendants. In addition to the same, defendants 4 and 8 have also taken a contention that some of the items were purchased by them for valuable consideration and the persons who executed the documents were competent to execute the same, especially when the same were taken after the disposal of the earlier suit.

4. On the above pleadings, the parties went on trial. On the side of the plaintiff, two witnesses were examined as P.Ws.1 and 2,and Exs.A-l to A-12 were marked. On the side of the defendants, the third defendant was examined as D.W.I, and, on their side, Exs.B-1 to B-18 were marked.

5. After consideration of the evidence, both oral and documentary, the trial court held that Ex.A-1 was acted upon and the mother became absolute owner of all the properties, and that any document executed by their father subsequent to Ex.A-1 was not valid. It was also found that there was no question of any limitation or adverse possession since the parties are co-owners and there was also no evidence regarding ouster. It also found that the various documents filed by the defendants did not prove their claim of exclusive possession or extinguishment of co-ownership right of the plaintiff. It also found that the plaintiff is not entitled to any special right as pleaded by them. As regards the consequence of the earlier suit O.S. No.259 of 1967, the trial court held that the same is not a bar for instituting the present suit, the main reason being that the third defendant who was to pay some amount for the purpose of settling the earlier case, had not paid that amount and they withdrew the settlement unilaterally. It also found that the alleged compromise did not reach fruition and therefore, the provisions of O.23, Rule.3, C.P.C. cannot have any application. It also found that the suit is not barred by res judicata, since the court did not enter a finding on the merits of the case. A preliminary decree was granted by the trial court. The matter was taken in appeal by defendants 3 and 4 as A.S. No.59 of 1978, on the’ file of the Subordinate Judge’s Court, Padmanabhapuram.

6. In appeal, the lower ap