A previous suit's dismissal for default does not operate as res judicata, nor does it bar a fresh suit in the presence of joint possession.

ORDER :

1. This Second Appeal has been preferred against the judgement and decree passed in A.S.No.20 of 2011 dated 23.02.2015 on the file of III Additional District Judge, Dharapuram, wherein the respondents herein had preferred an appeal against the judgment and decree passed in O.S.No.117 of 2008, dated 08.11.2010 on the file of Subordinate Judge, Dharapuram.

2. The respondents 1 and 2 herein being the plaintiffs have filed a suit for the relief of partition and the same was dismissed. Aggrieved by the said judgement and decree, the plaintiffs have preferred the first appeal. The first Appellate Court reversed the judgment and decree dated 08.11.2010 and allowed the appeal suit. Aggrieved by the same, the present second appeal has been filed.

3. The parties are referred to as per their own ranking before the trial Court for the sake of convenience.

4. The brief averments of the plaint are as follows:

Originally, the suit properties belonged to one Kuppayammal, who is the maternal grand-mother of the first plaintiff and she died intestate 35 years back and the mother of the 1^st plaintiff pre-deceased her. After the demise of Kuppayammal, her properties were divided among her sons Chinnasamy, Kuppusamy and the son of a pre-deceased daughter namely Palaniyammal, thereby, the 1^st plaintiff has succeeded the estate of Kuppayammal amounting to 1/6 share each of the property. The second plaintiff is the son of the 1^st plaintiff. The remaining undivided half share in the suit properties were originally belonged to one Sellappagounder, who died intestate 60 years back. The said Sellappa Gounder had two daughters, namely, Kuppathal and Samiyathal and they are entitled to 1/4 share over the property. After the demise of the mother of the 1^st plaintiff, his father Sellakumara gounder re-married Kuppathal and begotten two daughters, namely Valliyathal and Samiyathal. Kuppathal also died intestate leaving behind her 1/4 share to be succeeded by her daughters Valliyathal, Samiyathal and her husband Sellakumara gounder. Therefore, the plaintiffs are entitled to 1/12 share over the property. Since the husband of Kuppathal died, his daughters, Valliyathal and Samiyathal are equally entitled to his property, and therefore, the 1^st plaintiff is entitled to 1/36 share over the properties. It is stated that through grand mother Kuppayammal, the 1^st plaintiff has got his 1/6 share and through his father Sellakumara gounder, the 1^st plaintiff is entitled to 1/36 share and in all 7/36 share of the property.

4.1 While the facts are being so, the first defendant suppressing the share of the plaintiffs had purchased the property from other sources who are having only 29/36 shares through two sale deeds dated 31.07.1991 and 30.01.1992 respectively. The above said sale would not binding upon the 7/36 share of the plaintiffs. The plaintiffs sent a notice to the defendants through their counsel on 23.02.1995 and the first defendant issued a false reply dated 23.02.1995. Thereafter, the plaintiffs have filed a suit in O.S.No.437 of 1995 on the file of the District Munsif Court, Dharapuram for the relief partition and the same was dismissed for non-prosecution on 06.08.1997. Since the extent of the share has been wrongly mentioned in the said suit and in order to file a fresh suit, the plaintiffs have not taken any steps to restore the said suit which was dismissed for default. As the said decree is ex parte one and has not been passed after trial, the same is no way affect the present suit. After the dismissal of the said suit, the first defendant through the mediator approached the plaintiffs to a