The dismissal of a previous suit for default does not constitute res judicata, and the principle of lis pendens does not invalidate a purchase during the pendency of a suit.

This second appeal has been filed against the judgment and decree, dated 31.3.2006, made in A.S.No.57 of 2005, on the file of the II Additional Subordinate Court, Cuddalore, confirming the judgment and decree, dated 27.6.2005, made in O.S.No.57 of 2003, on the file of the Principal District Munsif Court, Cuddalore.

2. The plaintiff in the suit, in O.S.No.57 of 2003, is the appellant in the present second appeal. The defendant in the said suit is the respondent herein.

3. The plaintiff had filed the suit praying for a decree restraining the defendant, its men, agents and others claiming under the defendant, by way of a permanent injunction from, in any manner, interfering with the plaintiff’s peaceful possession and enjoyment of the suit B schedule property and for costs.

4. The plaintiff had stated that the suit A schedule property is the ancestral property belonging to the plaintiff and his family, for more than a century. After the partition, that had taken place in the family, the plaintiff’s father had got the suit A schedule property and other properties, as his share. After the plaintiff’s father had died, the plaintiff and his elder brother were enjoying the joint family properties. Since, they could not arrive at an amicable division of the properties, the plaintiff had filed a suit, in O.S.No.274 of 1998, on the file of the Subordinate Court, Cuddalore, for partition and for separate possession, including the suit A schedule property. The suit had ended, on 24.11.1998, in a compromise between the plaintiff and his brother in which the suit A schedule property had been allotted to the plaintiff’s share. Thereafter, the plaintiff had become the absolute owner of the suit property and had prescribed title by adverse possession as well.

5. It had also been stated that the plaintiff’s house is situated in a portion of the property on the eastern side of the suit T.S.No.1807 and T.S.No.1808, bearing door No.27. There are two sheds covering T.S.Nos.1807 and 1806, which had been rented out by the plaintiff to R.V.S. retreading company and the remaining portion is vacant.

6. It had also been stated that the plaintiff alone is entitled to the suit A schedule property and that he is in possession of the same. One prabhavathy and the communist party of India had together filed a suit, in O.S.No.437 of 1995, against the plaintiff, claiming title and by putting forward an agreement of sale in favour of the communist party of India.

7. It had also been stated that the plaintiff had contested the suit filed by one Prabhavathi and the Communist Party of India, and the suit had been dismissed for default. An Interlocutory Application, in I.A.No.1820 of 2006, had been filed to restore the suit. The suit had been restored, on 11.4.1997. However, the said suit had been dismissed for default, once again, on 20.10.1997. An interlocutory application, in I.A.No.2090 of 1997, had been filed, under Order 9 Rule 9 of the Civil Procedure Code, 1908, to restore the suit. However, the interlocutory application had been dismissed, on merits, on 23.6.1999. In the meantime, the defendant had purchased the property by means of a registered sale deed, dated 25.5.1998, from Prabhavathy and others.

8. It had also been stated that the plaintiff had no interest in respect of the property, in T.S.No.1808. The defendant is in possession of the said property. However, the defendant is not in possession of any portion of the property, in T.S.No.1807. The purchase of the property by the defendant, from Prabhavathy and others, would not entitle the defendant to claim title in respect of the said property, as the purchase of the property is hit by the principle of lis pendens.

9. It has also been stated that the suit, in O.S.No.437 of 1995, having been dismissed, and the application made under Order 9 Rule 9 of the Civil Procedure Code, 1908, also having been dismissed, the claim being made by the defendant is barred by the principle of Res Judica