Judgment :- The defendants 1 and 2 in O.S.No.25 of 1985 on the file of the Additional District Munsif Court, Kallakurichi are the appellants. The defendants though succeeded before the trial Court, but lost the case in the first appellate Court in A.S.No.149 of 1992 on the file of the Additional Sub Court, Cuddalore. 2. The parties are referred to as per their rankings in the suit. 3. The respondent/plaintiff filed the suit originally for declaration and for permanent injunction in respect of the suit property and as per amended plaint, the plaintiff claims alternative relief for possession of the suit property by stating as per paragraph 5(a) in the amended plaint that after filing of the suit, the defendants have trespassed into the suit property. 4. The suit property is 81 cents in Dry R.S.No.26/3, Palrampattu village, patta No.51 bounded on the South of lane of Thiruvenkata Chetty, North of the land of Solaiya Pillai, West and East of the land of Palania Pillai. The first defendant is the wife of the second defendant. The plaintiff claims title to the suit property in view of the purchase as per registered sale deed (Ex.A-1) dated 11.8.1970 and after purchase she discharged the simple mortgage deed (Ex.A-2) dated 26.3.1968 executed in favour of Chinthamani Ammal by her vendor Mottaiya Pillai alias Kandasami Pillai. Since the defendants attempted to interfere with the possession of the plaintiff in the suit property, the plaintiff filed the suit on 10.1.1985. The plaint was amended as per order in I.A.No.2028 of 1989 dated 19.9.1989 seeking alternative relief of possession, in that after filing of the suit, the defendants trespassed into the suit property. 5. In the written statement filed by the first defendant, the purchase of the suit property by the plaintiff under sale deed (Ex.A-1) dated 11.8.1970 is denied and stated that with regard to the suit property, a suit O.S.No.715 of 1969 was filed by the vendor of the defendant, viz., Minor Elangovan, against the plaintiff's vendor Mottaiya Pillai alias Kandasami Pillai in which, the plaintiff's husband Thiruvenkata Chetti is also party. Therefore, the judgment delivered in O.S.No.715 of 1969 on 26.9.1972 is binding on the plaintiff. As per the patta filed, the plaintiff is entitled to less than 40 cents. Defendant's vendor, Elangovan took possession of 42 cents including 40 cents. Therefore, the judgment delivered in O.S.No.715 of 1969 on 26.9.1972 is binding on the plaintiff. As per the patta filed, the plaintiff is entitled to less than 40 cents. Defendant's vendor, Elangovan took possession of 42 cents including 40 cents. Further, Elangovan filed another suit O.S.No.47 of 1977 against the plaintiff and her husband Thiruvenkata Chetti in respect of 42 cents, which was decreed and pursuant to such decree, Elangovan also took possession of the property through Court on 7.8.1983 (Ex.B-8, delivery receipt). So, the suit is barred by res judicata. The first defendant purchased 42 cents of land from Elangovan as per registered sale deed (Ex.B-9) dated 22.8.1984 and therefore, the plaintiff has no title to the suit property. The first defendant also purchased as per sale deed (Ex.B-1) dated 6.7.1977, 61 cents of land from Palania Pillai and his wife Valliammal on the north of the suit property, for which separate U.D.R. Patta bearing No.177 was also issued in favour of the first defendant under Urban Land Development Scheme mentioning Survey No.26/3C. The plaintiff's vendor Mottaiya Pillai was not entitled to 81 cents of land, which is claimed by the plaintiff, pursuant to her purchase. The plaintiff never enjoyed entire extent of land claimed. 6. The second defendant by stating similar case as stated above by the first defendant, viz., his wife, in her written statement, filed separate written statement that in the suit O.S.No.715 of 1969 filed by the then minor Elangovan, 42 cents of land was allotted to the then Minor Elangovan and 1.00 acre was allotted to one Pachaiammal and the property in that suit is on the north of Survey No.26/3C, which is inclusive of the suit property and as such, the sale in favour of the plaintiff is hit by lis pendens. The second defendant purchased 5 cents of land as per sale deed (Ex.B-15) dated 22.8.1984 from Pachaiammal. The second defendant is also filed additional written statement, which is adopted by the first defendant, that the plaintiff is not entitled for possession as claimed. 7. The second defendant purchased 5 cents of land as per sale deed (Ex.B-15) dated 22.8.1984 from Pachaiammal. The second defendant is also filed additional written statement, which is adopted by the first defendant, that the plaintiff is not entitled for possession as claimed. 7. The trial Court disbelieving the case set out by the plaintiff dismissed the suit O.S.No.25 of 1985 and in the appeal in A.S.No.149 of 1992, by reversing the judgment of the trial Court, the suit was decreed as prayed for without even recording specific finding as to whether, the defendants trespassed into the suit property after the filing of the suit and as such, the plaintiff is entitled for the relief of declaration and possession, despite the fact as per amended plaint, the plaintiff has stated that after filing of the suit the defendants trespassed into the suit property. The judgment of the first appellate Court is challenged in this appeal. 8. After filing the second appeal, first appellant/first defendant died and his legal representatives have been added as appellants 3 and 4. 9. The following substantial question of law has been framed at the time of admission of the Second Appeal:- Whether in law the lower appellate court has not failed to see that the present suit is barred by the principle of res judicata? 10. After hearing the learned counsel for the appellants as well as the respondent the following additional substantial question of law is framed: Whether in law the sale in favour of the respondent/plaintiff is hit by lis pendens? 11. Learned counsel for the appellants argued that inasmuch as in the partition suit O.S.No.715 of 1969 filed against his father Mottaiya alias Kandasami Pillai, minor Elangovan was allotted 42 cents in respect of 1.42-1/2 acres out of 2.85 acres in Survey No.26/3, towards his 1/3rd share as seen from Ex.B-4 dated 28.7.1975 and his paternal aunt Pachai Ammal was allotted 1.00 acre in respect of 1.42 acres out of 2.85 acres in Survey No.26/3 towards her 1/4th share as seen from Ex.B-10 dated 28.2.1977, and as such, the plaintiff's vendor Mottaiya alias Kandhasami Pillai was not entitled to 81 cents conveyed to the plaintiff under Ex.A-1 dated 11.8.1970 on his behalf and on behalf of his minor son Elangovan. In that suit the plaintiff's husband Thiruvenkata Chetti was also party. In that suit the plaintiff's husband Thiruvenkata Chetti was also party. Since, Elangovan, the plaintiff in O.S.No.715 of 1969 sold his share, viz., 42 cents of land in respect of 1.45-1/2 acres out of 2.85 acres in Survey No.26/3 as per sale deed Ex.B-9 dated 22.8.1984 to the first defendant, the plaintiff cannot claim any share in respect of the property conveyed to the first defendant under Ex.B-9 dated 22.8.1984. The learned counsel also submitted that the suit O.S.No.47 of 1977 filed by Elangovan against the plaintiff Irusayi Ammal and her husband Thiruvenkata Chetti for declaration and injunction, was decreed after contest and that the first defendant's vendor Elangovan took possession of the property through Court on 7.8.1983, which was sold to the first defendant under Ex.B-9 dated 22.8.1984. Hence, the sale deed with regard to purchase under Ex.A-1 dated 11.8.1970 in favour of the plaintiff, pending partition suit O.S.No.715 of 1969, is hit by lis pendens and not binding on the appellants. 12. Further, the learned counsel for the appellants vehemently contended that in view of the decree passed in O.S.No.47 of 1977 (Ex.B-6), the litigation, subject matter of the present suit O.S.No.25 of 1985, has been conclusively set at rest and so, the present suit is barred by the principles of res judicata. 13. The learned counsel for the respondent/plaintiff argued that inasmuch as Mottaiya alias Kandhasami Pillai executed the sale deed Ex.A-1 dated 11.8.1970 for himself and on behalf of his minor son Elangovan and to discharge the mortgage debt under Ex.A-2 dated 26.3.1968 executed by Mottaiya Pillai in favour of the plaintiff's daughter Chinthamani Ammal and in view of such purchase, the plaintiff is entitled to 81 cents out of 2.85 acres in Survey No.26/3, viz., the suit property. The learned counsel further pointed out that the second defendant has also executed lease receipt in respect of 19 cents out of 2.85 acres in Survey No.26/3 under Ex.A-5 dated 31.10.1983 and that patta has also been issued in respect of the suit property under Ex.A-3 dated 25.10.1982 to the plaintiff. 14. Elangovan, the minor son of the plaintiff's vendor Mottaiya alias Kandhasamy filed the partition suit O.S.No.715 of 1969 through his guardian mother Solai Ammal claiming partition of his 3/8 share in the suit property, in which item 5 is 1.42-1/2 acres out of 2.85 acres in Survey No.26/3 and also in other 9 items. 14. Elangovan, the minor son of the plaintiff's vendor Mottaiya alias Kandhasamy filed the partition suit O.S.No.715 of 1969 through his guardian mother Solai Ammal claiming partition of his 3/8 share in the suit property, in which item 5 is 1.42-1/2 acres out of 2.85 acres in Survey No.26/3 and also in other 9 items. The suit O.S.No.715 of 1969 was filed on 23.8.1969. Printed copy of judgment in O.S.No.715 of 1969 is Ex.B-3. Certified copy of preliminary decree in O.S.No.715 of 1969 is Ex.B-2. Certified copy of final decree in O.S.No.715 of 1969 as per I.A.No.347 of 1975 in favour of Elangovan is Ex.B-4. Certified copy of delivery receipt in respect of the property delivered in the suit O.S.No.715 of 1969 to minor Elangovan as per E.P.No.188 of 1975 dated 5.12.1975 is Ex.B-5. 15. The suit O.S.No.715 of 1969 was filed stating that minor Elangovan's father, viz., Mottaiya alias Kandhasami Pillai, the vendor of the plaintiff herein went to Ervoipatnam village with one Saroja Ammal after leaving his wife Solai Ammal and the son minor Elangovan in Keeranur village and that Mottaiya alias Kandhasamy Pillai and Saroja Ammal have been living at Palrampattu village. In that suit, Thiruvenkata Chetti, who is the husband of the plaintiff herein was the fourth defendant. That suit O.S.No.715 of 1969 was contested only by Pachai Ammal, sister of Mottaiya alias Kandhasami Pillai besides, the 3rd defendant Vadamalai Padayachi and the 5th defendant Dhanabagyammal. 16. Though the plaintiff in the suit O.S.No.715 of 1969 claimed 3/8th share in the properties of that suit claiming as joint family properties, however, preliminary decree for partition was passed that the plaintiff minor Elangovan was entitled only 1/3rd share, in that his father Mottaiya alias Kandhasami Pillai was entitled to half share in the ancestral properties, besides equal share in the half share of his father and as such, on the death of his father, Mottaiya alias Kandhasami Pillai was entitled to half share plus 1/6th share of his father and his mother Angammal was entitled to 1/6th share and his sister Pachai Ammal was entitled to 1/6th share. Further, on the death of his mother Angammal, Mottaiya alias Kandhasami Pillai was entitled to half share out of 1/6th share. Further, on the death of his mother Angammal, Mottaiya alias Kandhasami Pillai was entitled to half share out of 1/6th share. Therefore, on the death of his father and on the death of his mother totally 1/2 + 1/6 + 1/12 = 9/12 or 3/4th share while his sister Pachai Ammal was entitled to 1/6 + 1/12 = 3/12 or 1/4th share and as such, the plaintiff minor Elangovan in that suit was entitled to 3/8th share. However, preliminary decree was granted in favour of the plaintiff in respect of 1/3rd share, in that some mistake has crept in allotting the share to the plaintiff as 1/3rd share instead of 3/8th share. 17. Thereafter, minor Elangovan filed the suit O.S.No.47 of 1977 against Thiruvenkata Chetti and Irusayi Ammal, the plaintiff herein for declaration, declaring that the plaintiff Minor Elangovan is entitled to 42 cents delivered to him as per final decree in the earlier partition suit O.S.No.715 of 1969; possession; past mesne profits of Rs.1,400/- and future mesne profits and the suit after contest by Irusayi Ammal was decreed on 28.11.1980 as prayed for relegating the mesne profits for separate proceedings under Order 20 Rule 12 C.P.C. Therefore, it is clear that 42 cents out of 2.85 acres in Survey No.26/3 was allotted to the share of minor Elangovan in the partition suit O.S.No.715 of 1969, the printed copy of judgment is Ex.B-7 and the certified copy of decree is Ex.B-6. Pursuant to such decree, the plaintiff in that suit, viz., Elangovan put in possession of the property in that suit, viz., 42 cents allotted to his share as per the final decree dated 28.7.1975 (Ex.B-4) in O.S.No.715 of 1969 and the delivery receipt is Ex.B-8 dated 7.8.1983. Elangovan sold the said property, viz., 42 cents out of 2.85 acres under sale deed Ex.B-9 on 22.8.1984 to the first defendant. 18. As per final decree Ex.B-10 dated 28.2.1977 Pachai Ammal, sister of Mottaiya alias Kandhasami Pillai was allotted 1.00 acres out of 2.85 acres in S.No.26/3 towards her 1/4th share along with some other properties in the suit O.S.No.715 of 1969. 19. 18. As per final decree Ex.B-10 dated 28.2.1977 Pachai Ammal, sister of Mottaiya alias Kandhasami Pillai was allotted 1.00 acres out of 2.85 acres in S.No.26/3 towards her 1/4th share along with some other properties in the suit O.S.No.715 of 1969. 19. The vendor Palaniya Pillai and his wife Valliammal filed suit O.S.No.311 of 1977 against Pachai Ammal, in which after contest, the suit was decreed declaring that the first plaintiff in that suit, viz., Palaniya Pillai is entitled to 34 cents with specific boundaries out of 2.85 acres in Survey No.26/3 and the second plaintiff in that suit, viz., Palaniya Pillai's wife, Valliammal is entitled to 80 cents out of 2.85 acres in Survey No.26/3. The certified copy of decree in that suit is Ex.B-12 and the printed copy of judgment in that suit is Ex.B-13. The appeal filed in A.S.No.248 of 1981 was also dismissed confirming the decree and judgment made in Exs.B-12 and B-13 respectively. The certified copy of decree in the appeal is Ex.B-14 dated 19.2.1983. 20. The second defendant purchased from Pachai Ammal under Ex.B-15 dated 22.8.1984, viz., 5 cents out of 2.85 acres in Survey No.26/3 with specific boundaries. Palaniya Pillai and his wife Valliammal sold property under Ex.B-16 dated 12.9.1988 to the first defendant, viz., 86 cents in Survey No.26/3I, 10 cents in Survey No.26/3G, 8 cents in Survey No.26/3D of Palrampattu village totalling 1.04 acres with half right in well in Survey No.26/3G and half right in Mango trees in Survey No.26/3H. The first defendant purchased 73 cents in Survey No.26/3H under sale deed Ex.B-17 dated 1.4.1987 from Chella Pillai and his brother Kandhan and their minor children. 21. In the partition suit O.S.No.715 of 1969 filed by the then minor Elangovan through his next friend, mother Solai Ammal against his father Mottaiya Pillai alias Kandasami Pillai, his paternal aunt Pachai Ammal, Vadamalai Padayachi, Thiruvenkata Chetti, the husband of the plaintiff in O.S.No.25 of 1985, subject matter of this Second Appeal and Dhanabagyammal; though Mottaiya Pillai alias Kandasami Pillai entered appearance through advocate, he was set ex parte since his counsel reported no instructions and also the 4th defendant, Thiruvenkata Chetty, the husband of the plaintiff in O.S.No.25 of 1985, subject matter of this Second Appeal was also set ex parte and the suit ended in preliminary decree after contest by the second defendant Pachai Ammal and the defendants 3 and 5. Mottaiya alias Kandasami Pillai as well Thiruvenkata Chetti were remained ex parte even in the final decree proceedings also. As per the final decree in I.A.No.347 of 1975, 42 cents in S.No.26/3, was allotted and delivered to Elangovan in E.P.No.188 of 1975 in O.S.No.715 of 1969, which is item 5 of the suit property in that suit, along with other properties towards his 1/3rd share. Similarly, pursuant to final decree I.A.No.910 of 1975, in which also Mottaiya alias Kandasami Pillai as well Thiruvengada Chetti remained ex parte, 1.00 acre in S.No.26/3 was allotted to Pachai Ammal, the sister of Mottaiya alias Kandasami Pillai, and the same was delivered to Pachai Ammal in E.P.No.111 of 1977 along with other properties towards her 1/4th share. 22. Thereafter, in the suit O.S.No.47 of 1977 filed by the then minor Elangovan through his next friend mother Solai Ammal, as per decree in that suit, the possession of 42 cents in S.No.26/3 was delivered in E.P.No.422 of 1983 (Ex.B-8). Therefore, after such allotment and delivery of the property, viz., 42 cents to Elangovan and 1.00 acre to Pachai Ammal in S.No.26/3, Mottaiya alias Kandasami Pillai, the father of Elangovan and brother of Pachai Ammal had no salable interest in Survey No.26/3 since it is the case of the plaintiff that Mottaiya alias Kandasami Pillai was entitled only half share out of 2.85 acres in S.No.26/3 and it is not the case of the plaintiff that Mottaiya alias Kandasami was entitled to another half out of 2.85 acres in S.No.26/3 and no such case is made out. Therefore, after such allotment and delivery of the property to Elangovan and Pachai Ammal through Court, pursuant to the preliminary decree passed in O.S.No.715 of 1969, which was filed before the sale in favour of the plaintiff under Ex.A-1 dated 11.8.1970, the sale under Ex.A-1 is hit by lis pendens. 23. Therefore, after such allotment and delivery of the property to Elangovan and Pachai Ammal through Court, pursuant to the preliminary decree passed in O.S.No.715 of 1969, which was filed before the sale in favour of the plaintiff under Ex.A-1 dated 11.8.1970, the sale under Ex.A-1 is hit by lis pendens. 23. The suit O.S.No.25 of 1985, subject matter of this second appeal, is also barred by res judicata in view of the judgment made in O.S.No.47 of 1977 filed against the plaintiff and her husband Thiruvenkata Chetti which also after contest, decreed in favour of Elangovan declaring that Elangovan is entitled to the suit property, viz., 42 cents in S.No.26/3, which was allotted to Elangovan as per final decree in I.A.No.347 of 1975 in O.S.No.715 of 1969 and pursuant to which decree possession of the same was also handed over to Elangovan under Ex.B-5 in E.P.No.188 of 1975. 24. Further, Palania Pillai and his wife Valliammal filed the suit O.S.No.311 of 1977 against Pachai Ammal in which 1.14 acres, viz., about half share out of 2.85 acres in S.No.27/3 was declared in their favour as per decree and judgment in Exs.B-12 and B-13, which was confirmed by the Sub Court, Vridhachalam in A.S.No.248 of 1981 as per decree in Ex.B-14. 25. Therefore, it is clear that since the sale in respect of the suit property in favour of the plaintiff under Ex.A-1 is hit by lis pendens and since the suit is barred by res judicata in view of the judgment delivered in O.S.No.47 of 1977, the plaintiff is not entitled for the relief sought for in the plaint for declaration and possession and as such, the plaintiff is to be non-suited, inasmuch as the plaintiff has not come to Court with clean hands. The first appellate Court has not recorded proper finding and as such, the judgment being erroneous is to be set aside. 26. In the result, in view of the discussions made above, the Second Appeal is allowed with costs, setting aside the judgment and decree dated 15.12.1992 passed by the Additional Sub Court, Cuddalore and the suit O.S.No.25 of 1985 on the file of the Additional District Munsif Court, Kallakurichi is dismissed.