Passing observation in appellate judgment dismissing partition appeal on res judicata does not confer fresh cause of action or Order 23 leave; subsequent partition suit barred by limitation and res judicata post-final decree and possession delivery.

JUDGMENT:

P.B. BALAJI, J.

1.Defendants 2 to 13, aggrieved by the reversal findings rendered by the Subordinate Judge, Kuzhithurai, in A.S.No.68 of 2011 dated 03.02.2017, setting aside the judgment and decree in O.S.No.14 of 2008 dated 13.12.2010, on the file of the First Additional District Munsif Court, Kuzhithurai, are the appellants herein.

2.The above Second Appeal was admitted by this court on 30^th August 2017, on the following substantial questions of law:

“1.Whether the observation made in Ex.A. 7 confer fresh cause of action to file O.S.No.14 of 2008?

2.Whether the suit is barred by limitation in view of the final decree passed in I.A.No.925 of 1978, dated 22.03.1983 and parties have taken delivery of their respective share?

3.Whether the Court has got power to grant leave to file fresh suit dehors Order 23 C.P.C?

4.Whether the suit is barred by Order 2 Rule 2 in view of Ex.A.8 judgment?”

3.I have heard Mr.C.Godwin, learned Counsel for the appellants and Mr.S.Meenakshi Sundaram, learned Senior Counsel for Mr.N.Ga.Nataraj, learned Counsel for the respondents.

4.The brief facts that are necessary for a decision in the above Second Appeal are as follows:

4.1.The plaintiffs are the legal heirs of Ponnumani Nadar and Janaki. The plaintiffs sought for partition and separate possession of 22 cents, claiming right under exhibits A.1, A.3 and A.5 between the years 1965 and 1967. The case of the plaintiffs is that the property was purchased from defendants 50 to 53 in an earlier litigation in O.S.No.161 of 1962. The defendants in the present suit, who are the appellants in this Second Appeal are none else than the legal heirs of defendants 50 to 53 in O.S.No.161 of 1962.

4.2.O.S.No.161 of 1962, was disposed of, with no share being allotted to Ponnumani Nadar and Janaki. Ponnumani Nadar filed an appeal in A.S.No.165 of 1983, before the Subordinate Court, Kuzhithurai. Pending the said appeal, two suits came to be filed, one for permanent injunction and the other for declaration. O.S.No. 332 of 1989, was filed by Ponnumani Nadar, seeking an injunction to restrain the appellants from taking delivery of a property in terms of the decree in O.S.No.161 of 1962 and another suit in O.S. No.336 of 1980. O.S.No.51 of 1990, was filed by Janaki, wife of Ponnumani Nadar for declaration. Both the suits were however, dismissed by the trial court. The dismissal of the two suits was brought to the notice of the Appellate Court in A.S.No.165 of 1983, the appeal filed by Ponnumani Nadar, challenging the decree in O.S.No.161 of 1962.

4.3.The appeal in A.S.No.165 of 1983, was however, dismissed on 28.08.1991. Thereafter, the plaintiffs filed the present suit in O.S.No.14 of 2008 on 02.12.2008, claiming that the Appellate Court in A.S.No.165 of 1983, had given them liberty to sue for partition and thus, the suit came to be filed. The suit was resisted by the defendants, contending that there was no such liberty granted by the Appellate Court; the suit was hopelessly barred by limitation; the suit was also barred under the provisions of Order II Rule 2 of the Code of Civil Procedure . The trial court after full enquiry, found the suit to be barred by res judicata, in view of the findings rendered in O.S.No.161 of 1962 and confirmed in A.S.No.165 of 1983.

4.4.The plaintiffs, aggr