Dr. G. Jayachandran, J.

This is a defendants' appeal. The suit filed for partition was allowed by the trial Court and confirmed by the First Appellate Court. Aggrieved by the concurrent judgment, this second appeal is filed primarily on the ground of res judicata and ouster.

2. The parties before this Court are legal heirs of late Mr. K. Veerasamy and Late Mr. K. Kuppusamy who are the blood brothers. The suit properties were jointly purchased by Mr. K. Veerasamy and Mr. K. Kuppusamy in the year 1955. During their life time, the suit properties were managed by Mr. K. Kuppusamy, the father of the defendants since, Mr. K. Veerasamy, the father of the plaintiffs settled in Ooty. In the year 1999, when Mr. K. Veerasamy came to know that his brother Mr. K. Kuppusamy has not deposited his share of rental income in his bank account as promised, he requested for partition of the suit properties by metes and bounds and also caused pre-suit notice on 03.11.1999. In response to the said notice, Mr. K. Kuppusamy replied denying his brother's right seeking partition. Therefore, Mr. K. Veerasamy filed a suit for partition in O.S. No. 105 of 2000 which was re-numbered as O.S. No. 192 of 2004. Unfortunately, pending suit, both Mr. K. Veerasamy and Mr. K. Kuppusamy died and the suit was dismissed for default on 09.04.2003. The restoration petition filed by the plaintiffs in O.S. No. 104 of 2005 which is the subject matter of this appeal was dismissed on 30.11.2004. To avoid multiplicity of proceedings and delay, a fresh suit for partition was filed by the legal heirs of Mr. K. Veerasamy against the legal heirs of Mr. K. Kuppusamy.

3. The appellants herein in their written statement contested the suit on the ground that under Section 11 of C.P.C., the subsequent suit is barred by the principle of res judicata in view of the dismissal of the former suit O.S. No. 192/2004. In the statement, it is averred by the appellants that, dismissal of the restoration petition filed under Order 9, Rule 9 of C.P.C., not challenged by the respondents, so they have lost their right to file a fresh suit for the same relief.

4. The further contention of the appellants was that, in the sale deed dated 15.07.1955, the name of Mr. K. Veerasamy was mentioned without assigning any right or interest in the suit properties. In the year 1957-1958, Mr. K. Veerasamy left Coonoor and settled down permanently at Ooty. Thereafter, till the date of his death, he ever visited the suit properties or claimed right over the same until he issued notice in the year 1999. Therefore, the appellants' father has perfected his title by ouster. In support of this contention, the appellants claim that the mortgage of the suit properties jointly by Mr. K. Veerasamy and Mr. K. Kuppusamy in favour of one Mr. Mari under Document No. 589/1955 was redeemed later by Mr. K. Kuppusamy exclusively after Mr. K. Veerasamy settled permanently at Ooty and the subsequent mortgage made in favour of one Mrs. Sangiliammal by him exclusively vide registered mortgage No. 810/1961 and redeemed exclusively by him.

5. The Courts below, on examining Ex.A.1, the title deed, mortgage deeds in favour of Mr. Mari and Mrs. Sangiliammal marked as Ex.A.2 and Ex.B.1 and other connected documents has held that the plea of ouster had not been proved by the appellants. The Courts below have concurrently held that there is no substantial proof to show that the appellants have perfected title by adverse possession on the premise of ouster.

6. With regard to the plea of res judicata, it has been held by both the Courts below that the earlier suit in O.S. No. 192/2004 was not heard and decided finally but, dismissed for default.

7. The learned counsel for the appellants contended that though the earlier suit was dismissed for default, it was dismissed after completion of pleadings. The present respondents filed restoration of the suit and that was also dismissed. Under such circumstances, Section 11 of C.P.C., squarely applie