JUDGMENT :

N. Seshasayee, J.

1. The plaintiff in O.S. No. 476/1999, on the file of the District Munsiff Court, Namakkal, is the appellant herein. He laid the suit for declaring that the decree passed in O.S. 93/1989 on the file of the same court - is not binding on him, and for other ancillary reliefs. He lost the suit successively both before trial court and the first Appellate Court. Rival parties would be referred to by their ranks before the trial Court.

I The Pleadings:

2. The case of the plaintiff can be divided into two parts : There is no dispute regarding facts that led to the filing of the present suit. This is the first part. And, the dispute he has raised in this suit constitutes the second part.

(a) The undisputed facts:

The father of the first defendant is one Ramasamy. Ramasamy along with his sons had instituted O.S. 93/1989 against a certain Kandasamy Gounder, and his two sons Appu alias Palaniappan, and Durai as defendants 1 to 3, for recovery of possession of the suit property and for mandatory injunction to remove certain obstruction in the pathway. The plaintiffs (Ramasamy and his sons) alleged that the suit property belonged to them and that the defendants (Kandasamy Gounder and his sons) had encroached into the suit property. The copy of the plaint is Ext.A2.

During the pendency of O.S. 93/1989, both Ramasamy (first plaintiff) and Appu alias Palanisamy (the second defendant) died. Consequent to Palanisamy's death, his widow and children were brought on record as defendants 4 to 6. Of them, the present plaintiff was arrayed as the 6th defendant. He was a minor at that relevant time, and his mother, the 4th defendant was appointed as his guardian.

The plaintiff's grandfather (Kandasamy, the first defendant in O.S. 93/1989) alone filed the written statement. None of the other defendants contested the suit. In other words, the guardian of the 6th defendant-minor did not file any written statement on his behalf and contested the suit. Ultimately, on 30-06-1993, an ex parte decree came to be passed in O.S. 93/1989. Copy of this decree is Ext.A-3.

(b) The Dispute:

The plaintiff's mother as his guardian had not bestowed adequate care to defend his interest in O.S. 93/1989, and she had been callous and negligent in failing to contest the suit and in protecting the right of the plaintiff in the suit property, which has resulted in the plaintiff suffering an ex parte decree (Ext.A-3) there.

While so for executing the decree passed in O.S. 93/1989, the defendants herein have laid REP. No. 186/97 for delivery of suit property in O.S. 93/1989. It is only now did the present plaintiff come to know of what had happened in the earlier suit. The plaintiff soon made enquiries with his paternal grandfather, the first defendant in OS. 93/1989, to which the latter would say that since that suit was only for a right of pathway, he did not offer a contest.

Since the present plaintiff's interest was not defended in the earlier suit, the present suit is laid to declare that the decree passed in O.S. 93/1989 is not binding on him and to cancel it.

3. The case of the defendants (plaintiffs in O.S. 93/1989) was that the suit property originally belonged to their father. Be that as it may, the grandfather of the present plaintiff and the former's two sons (the defendants 1 to 3 in O.S. 93/1989) had encroached into their property, and hence the earlier suit was necessitated for recovery of the property so encroached. The plaintiff's grandfather had filed his written statement, and contested the suit. Subsequently, on the death of the second defendant (father of the plaintiff here), his heirs were impleaded. The counsel who appeared for the other defendants, entered appearance for defendants 4 to 6, the heirs of the deceased second defendant as well. The mother of the plaintiff was appointed as his guardian in that suit. Ultimately, a decree c