The main legal point established in the judgment is the application of the doctrine of res judicata and the principle that a matter which might and ought to have been made ground of defense in a former suit shall be deemed to have been directly and substantially in issue in such suit.

M. Chockalingam, J.

Challenge is made to the judgment of the learned Single Judge of this Court made in O.A.No.3328 of 2007 in C.S.No.129 of 2007. By the said judgment, the order of rejection of C.S.No.129 of 2007, a suit for partition, was made, by allowing the application in A.No.3328 of 2007.

2. The appellant/plaintiff filed the said C.S.No.129 of 2007 for partition seeking 1/5th share in the plaint schedule property with the following averments. The suit properties were purchased by the father of the plaintiff C.E. Reddi in the name of his wife, the first defendant. The properties were purchased by C.E. Reddi, out of the joint family funds. On his death, they were to be divided among the plaintiff and the first defendant/ wife and the children shown as the other defendants. In view of the misunderstanding among the family members, an oral partition was effected in the year 1987. As per the oral partition, the western portion of the Schedule Item-I along with garage was allotted to the plaintiff, while the eastern part was retained by the defendants 1 and 2. When such a division was orally made, the western portion was allotted to the plaintiff, since he was the eldest son and without the knowledge of the plaintiff, Item-II schedule was allotted to defendants 3 and 4 by the first defendant. While the matter stood thus, the first defendant filed C.S.No.719/2005 for delivery of vacant possession of the western portion of the property at Item No.1 from the plaintiff and also for the mesne profits from the plaintiff. Hence, there arose a necessity for the plaintiff to file a suit for partition for 1/5th share in item Nos. 1 and 2 of the plaint schedule properties.

3. The first defendant/ mother made an application under Order VII Rule 7 of C.P.C. and read with Order XIV Rule 8 of O.S. Rules for rejection of the plaint alleging that the said suit has been filed by the plaintiff only as a counter-blast to C.S.No.719 of 2005. The plaint items of properties are nothing to do with the joint family or estate of her husband. In the earlier suit in O.S.No.8620/1996 on the file of the City Civil Court, the plaintiff putforth the case of oral partition and a specific issue was framed whether the suit property Item No.1 was a joint family property. On trial, the issue was decided holding that it was not a joint family property but it was self acquisition of the first defendant. When the suit filed by the first defendant was decreed, the plaintiff took it on appeal in A.S.No.324 of 2000 but the same was withdrawn by him. Thus, the judgment in O.S.No.8620/1996 would operate as res judicata. Insofar as Item No.2 was concerned, the first defendant was the owner of the said property and she has settled the property to her two daughters viz., defendants 3 and 4 by two separate registered settlement deeds dated 23. 1986 and the defendants 3 and 4, pursuant to the same, have also taken possession and they have constructed their houses even before 1990. The plaintiff who is also residing in the other part of the property where the first defendant was residing had never made a claim for partition of Item No.2 of the schedule. The present suit claiming partition of 1/5th share was brought forth only to harass the 85 years old first defendant. Under such circumstances, it has to be rejected. The learned Single Judge after framing necessary points for consideration, ordered, rejection of the plaint.

4. Advancing the argument on behalf of the appellant Mr. R. Sridharan learned counsel would submit that the rejection of the plaint by the learned Single Judge as if the suit was not maintainable in view of the specific finding in O.S.No.8620/1996 was not correct since the said suit was for a mandatory injunction between the parties. Even assuming the finding was given, the said finding was confined only to one item of property in C.S.No.129 of 2007. It was contended by the plaintiff that in respect of the property there was no finding in that s