JUDGMENT :

(Prayer: This Appeal Suit is filed under Section 96 of the Civil Procedure Code, against the fair and decreetal order dated 25.10.2019 made in I.A.No.249 of 2018 in O.S.No.44 of 2018 on the file of the Additional District Judge, Sivagangai.)

1. Aggrieved over the order of the Additional District Judge, who rejected the suit filed by the appellants on the ground that the entire issue related to the property was already decided and reached the finality in a suit in O.S.No.321 of 1982, the present Appeal Suit is filed.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Appeal Suit, are as follows:-

The appellants being the plaintiffs before the trial Court filed a suit for declaration that the plaintiffs are the owners of the property and also for permanent injunction restraining the defendants, besides the decree and judgment in O.S.No.321 of 1982 dated 29.01.1991 is null and void and for other reliefs. The suit has been laid on the ground that the earlier suit in O.S.No.184 of 1977 was decided long back and as per the above judgment, the plaintiffs' ancestors have become the absolute owner of the property. Hence, it is the contention that the suit is O.S.No.321 of 1982 has been filed by the first defendant and his father without considering the earlier judgment passed in O.S.No.184 of 1977. Therefore, the present suit is filed for the relief as referred above.

4. The first defendant filed a written statement disputing the allegations levelled in the plaint. Besides, an application was also filed under Order 7 Rule 11 CPC., to reject the plaint. The trial Judge has found that the suit in O.S.No.321 of 1982 filed by the first defendant and his father for declaration and injunction had reached the finality as against the plaintiffs' father and others and hence, rejected the suit.

5. The learned counsel appearing for the appellants vehemently contended that the application under Order 7 Rule 11 CPC., has been filed on the ground that there is no cause of action for the suit. However, entire reading of the plaint makes it very clear that the plaintiffs have stated various cause of action. To find out whether there is a cause of action or not, the plain averment assumes significance, not even the pleadings of the defendant or the documents. Hence, it is the contention that when the plaint indicates sufficient cause of action to maintain the suit, the same cannot be rejected in toto. It is his further contention that the suit has been filed seeking declaration and to set aside the decree and judgment earlier passed in O.S.No.321 of 1982 on the ground that the judgment and decree is only per incuriam. Therefore, it is the contention that the suit is maintainable.

6. In support of his submissions, he has relied upon the following judgments:-

"(1) Singapore Reality Private Limited Vs. Government of Tamil Nadu [2020 (6) CTC 487]

(2) N.Ravindran Vs. V.Ramachandran [2011 (3) CTC 153]

(3) Municpal Corporation of Delhi Vs. Gurnam Kaur [AIR 1989 SC 38]

(4) Mamleshwar Prasad and another vs. Kanahaiya Lal through legal heris [AIR 1975 SC 907]"

7. The learned counsel appearing for the respondents/defendants contended that similar issue has already been decided in a suit in O.S.No.321 of 1982, wherein the plaintiffs' father Periyasamy was one of the defendant and the suit property was declared in his favour. The suit has reached its finality and the second appeal also dismissed. The present suit has been filed on the same ground seeking declaration on the ground that the Courts have not considered the earlier judgment passed in the year 1987. It is his contention that the suit is nothing but a re-litigation and abuse of process of law and therefore, prayed for dismissed the appeal.

8. In support of his submissions, he has relied upon the following judgment:-

(1) Tahsildar Aminjikari Taluk vs. A.V.Radhakrishnan and others [2020 SCC Online Mad 5