Application of res judicata to claims of partition and possession.

In S.A.(MD)No.31 of 1997, the defendant is the appellant. The appeal is preferred against the decree and judgment in A.S.No.149/1997, confirming the decree and judgment in O.S.No.230 of 1996, which is filed for permanent injunction.

2. In S.A.(MD)No.759 of 1997 is filed by the sole plaintiff against the decree and judgment in A.S.No.126 of 1993, partially allowing the appeal as against the decree and judgment in O.S.No.214 of 1991, which was filed for partition of 1/6 share of the plaintiff along with his brothers and sisters.

3. Though both the Second Appeals are arising out of two different judgments in A.S.Nos.124 & 126/1993, since the parties are same and the issues and suit properties involved are one and the same, the appeals are taken up together for hearing and a common judgment is delivered.

4. The brief facts of the case leading to filing of injunction suit and a partition suit between the two brothers and sisters are as follows:-

The Plaintiff in O.S.No.214 of 1991 and in O.S.No.230 of 1996 is one Sambandam, the younger brother of the first defendant in O.S.No.214 of 1991 and the sole defendant in O.S.No.230 of 1996. The dispute relates to the II schedule of the suit, situated at Thiruchotruthurai, within the Registration District of Thanjavur and within the Sub Registration District of Thiruvaiyaru and certain other properties situated within the above said registration District at Uppukachipatti Village. For convenience sake, the plaintiff in O.S.No.214 of 1991, who is the plaintiff in O.s.No.230 of 1996 is referred as the plaintiff and the first defendant one Panchapakesan alias Panchami, the elder brother of the plaintiff, is referred as the defendant. The plaintiff and the defendant and one Sankar, Mani, Muthulakshmi and Kamala are the children of one Samiayya alias Samiyappa of Thiruchotruthurai, who acquired the land in R.S.No.143/1B, to an extent of 1 acre 50 cents at Thiruchotruthurai Village and died intestate in the year 1976. This property is shown as item No.1, in partition Suit No.214 of 1991. There are 12 items in Uppukachipettai Village, out of which, item Nos.1 & 2 in S.No.154/2-A and 154/11-A belonged to one Seenivasa Perumal, who allegedly sold to one Gomu. But, however, they are under the cultivating tenancy of the family. The plaintiff claims that he is the cultivating tenant and the defendant claims that he is the cultivating tenant. As far as the other properties are concerned, they are purchased by the wife of the first defendant and the plaintiff contents that they have been acquired from and out of the income from the joint family property. Therefore, they are the joint family properties and liable for partition. Per contra, the defendant claims that they are his self acquired properties, purchased in his wifes name.

5. As far as the suit survey Numbers, S.No.154/2-A and 154/11-A are concerned, a dispute arose between the plaintiff and the defendants, which lead to filing of a suit in O.S.No.78/1991, which is an earlier Suit by the defendant for permanent injunction, restraining his younger brother not to interfere with his possession. He claimed that after the death of his father, he being the eldest member of the family, was in possession and enjoyment of the family properties and continue to cultivate the lands as a cultivating tenant and later he entered into a sale agreement with one Gomu, who was the subsequent purchaser from the original owner Seenivasa Perumal and claimed to be of possession.

6. This suit was resisted by the plaintiff stating that the defendant was a Government Servant in Revenue Department and he was never in possession of these two properties and he is not the cultivating tenant. The suit was dismissed, against which, an appeal was preferred and the same was also dismissed and there was no second appeal. Immediately after the institution of the Suit in O.S.No.78/1991, the plaintiff filed a suit for partition, as stated above. The suit for partition