1. The plaintiff, who is the appellant, is the purchaser of the suit property in the capacity of a mortgagee. The suit has been filed for declaration and injunction.

2. The case of the plaintiff is that the suit property originally belonged to one Sadayappa Konar, having acquired the same by his self-earnings. He had left a Will, dated 07.12.1994 and the same came into force on his death on 02.02.1995. As per the said Will, the suit property was bequeathed in favour of his daughter Ramathal children viz., Manimegalai, Thilagavathi and Arunpandian. The father of the legatees was appointed as guardian. Accordingly, after the Will came into force, the said beneficiaries have been in enjoyment of the property and subsequently, they mortgaged the suit property on 07.05.2008 with the plaintiff. In discharge of the mortgage, the suit property was sold in favour of mortgagee/plaintiff herein by virtue of the sale deed dated 20.04.2009. The plaintiff has been in possession of the property in his own capacity from the date of purchase. The second defendant had made a request to the plaintiff to sell the eastern side of the suit property which was refused by him. Enraged by the same, the second defendant along with the first defendant has been attempting to disturb the peaceful possession of the plaintiff. Hence, the suit was filed.

3. Denying the facts leading to the cause of action of the suit, the defendants contended that the Will, dated 07.12.2004, is not a valid document. It is also contended by the defendants that on the same cause of action, vendors of the plaintiff had filed O.S.No.85 of 1996 which was left to be dismissed for default on 16.03.2001. Suppressing the same, the plaintiff's vendor had filed another suit in O.S.No.1106 of 2004 for declaration and injunction against the first defendant, which was also dismissed for non prosecution on 09.11.2005. The property described in the above said suits and the present suit are one and the same. Therefore, having not taken the leave of the Court to file a fresh suit on the same cause of action, the suit filed as it is by the plaintiff is not maintainable as the same is hit by Order IX Rule 9 of the code of Civil Procedure. It is further stated in the written statement that the first defendant and the mother of the plaintiff's vendors are sisters and there was an oral partition in which the suit property fell to the share of the first defendant-Thirumalai Ammal, who had now sold the same in favour of the second defendant for a valid consideration. As the possession is with the second defendant, the plaintiff is not entitled for any relief and thus, he prayed for dismissal of the suit.

4. Before the trial Court, on the side of the plaintiff, the plaintiff himself was examined as PW1 and another witness was examined as PW2 and Exs.A1 to A12 were marked. On the side of the defendants, the second defendant himself was examined as DW1 and Exs.B1 to B8 were marked.

5. After framing relevant issues, the trial Court upheld the validity of the Will holding that the same is proved in accordance with law and decreed the suit, insofar as the relief of declaration is concerned and dismissed the suit with respect to the relief of injunction. Aggrieved by the same, the defendants had filed A.S.No.63 of 2012. The first appellate Court also found that the Will produced by the plaintiff is true and genuine, however, dismissed the suit on the ground that the suit is not maintainable and the same is barred under Order IX Rule 9 of C.P.C. Aggrieved by the same, the above second appeal has been filed by the plaintiff.

6. At the time of admission, the following substantial questions of law were formulated for consideration:

“(1)When the plaintiff alone is precluded from bringing a fresh suit in respect of the same cause of action where his previous suit is dismissed for default under Order 9 Rule 9 of Civil Procedure Code, whether the subsequent suit filed by the successor-in-title of the plaintiff