JUDGMENT :

R. Subramanian, J.

1. The defendants in O.S. No. 90 of 2000 have come up with this second appeal challenging the decree for permanent injunction granted against them concurrently by the Courts below. The said suit was filed by the sole respondent herein seeking permanent injunction restraining the defendants/appellants from interfering with his possession of the property.

2. According to the plaintiff, the suit properties belonged to one Govindasamy, who died in the year 1985 leaving a Will dated 17.03.1984 in and by which he had bequeathed the suit properties to his wife Pottiammal @ Kanniammal. The brother of the plaintiff, Poovasi entered into an sale agreement with Pottiammal @ Kanniammal on 27.08.1987 subsequently, the said Pottiammal @ Kanniammal along with plaintiff's brother Poovasi sold the property to the plaintiff under a sale deed dated 27.02.1997. According to the plaintiff, he has been in continuous possession and enjoyment of the property right from the date of the purchase. Since the defendants attempted to interfere with his possession of the suit property, the plaintiff had filed a suit in O.S. No. 145 of 1997 seeking a declaration of his title and consequent permanent injunction. The said suit came to be decreed on 19.01.1998. Since the first defendant attempted to interfere with his possession, despite the decree for injunction, the plaintiff had filed execution petition in E.P. No. 32 of 1999 for arrest the first defendant. Pursuant to an order made in the said Execution Petition, the first defendant was arrested and produced in Court. She was let off after execution of an undertaking on 13.10.2000. Despite the said decree, the defendants have been indulging in acts of trespass by removing the ridges, boundary stones etc., and had continued their attempts to occupy the suit property. Therefore, the plaintiff was forced to file a second suit for permanent injunction on the basis of the cause of action that arose on 10.12.2000.

3. The defendants would resist the suit contending that Govindasamy had no title. The Will executed by Govindasamy in favour of Pottiammal @ Kanniammal dated 17.03.1984 cannot convey any right on her, since the Govindasamy himself has no title over the property. The claim of the plaintiff that there was an agreement between Pottiammal and plaintiff's brother Poovasi on 27.08.1987 and a subsequent sale in favour of the plaintiff on 27.02.1997 were also denied by the defendants. The defendants would claim that the suit property belonged to father-in-law of the first defendant, Chinnakali. The said Chinnakali had two sons by name, Kali and Kolandhai. While the first defendant is the wife of Kolandhai, defendants 2 and 3 are the children of the first defendant. The said Chinnakali died about 45 years prior to the suit and his sons Kali and Kolandhai were in possession of the property.

4. At a partition that took place in the year 1969, the suit property was allotted to the share of Kolandhai and the said Kolandhai along with defendants have been in joint possession of the property. Therefore, according to the defendants, the plaintiff's vendor or the plaintiff have no title to the property and they were never in possession of the property as claimed. The second defendant had filed a separate written statement claiming that the defendants 2 and 3 along with their sister Madhu had filed a suit against the plaintiff and his vendor Pottiammal @ Kanniammal in O.S. No. 63 of 2002 and an ex-parte decree came to be passed in the suit declaring the title of the said Madhu and defendants 2 and 3 in the present suit on 28.01.2003 therefore, the present suit is barred by res-judicata.

5. The Trial Court, on a consideration of the evidence on record concluded that the decree in O.S. No. 63 of 2002 would not operate as res-judicata in as much as it is not a decision on merits. The Trial Court also found that the issues that arose in the present suit were not substantially part of the suit in O.S.