JUDGMENT : Aggrieved over the judgment and decree of the First Appellate Court dismissing the two appeals filed as against the judgment and decree of the Trial Court in O.S.Nos.38/1985 and 30/1988, on the file of learned Subordinate Judge, Kuzhithurai, these two second appeals came to be filed. 2. S.A.No.478 of 1997 is filed by the defendants 6, 7, 9, 10, 14, 16, 18, 19, 21, 23 and 24 in O.S.No.38 of 1985. S.A.No.479 of 1997 is filed by the plaintiffs in O.S.No.30 of 1988. The Trial Court has disposed of O.S.No.38 of 1985 and O.S.No.30 of 1988 under a common judgment, dated 09.12.1993. As against which, first appeals also filed in A.S.Nos.32 and 45 of 1994 before the District Court, Kanyakumari at Nagercoil. The above first appeals also disposed of by a common judgment, dated 25.10.1995. Aggrieved over the same, the present second appeals came to be filed. 3. The brief facts leading to filing of this case is as follows:- The plaintiffs in O.S.No.38 of 1985 filed the suit for partition of the suit property. It is the case of the plaintiffs in O.S.No.38 of 1985 that the suit property originally is a joint family property and the plaintiffs are entitled to ½ share in item Nos.1 to 5 and 6/33 share in Item No.6. The above suit property were originally mortgaged and there was a suit for redemption in O.S.No.665 of 1968. The above suit was decreed and the plaintiffs' right in the above suit was determined and appeal filed as against above suit in A.S.No.93 of 1972 is also dismissed and the plaintiffs also took possession of the property namely ½ share and the remaining ½ share belong to the defendants. Since there is no partition, the plaintiffs have filed a suit for partition. 4. The defendants 6, 7, 9, 10, 12, 13, 16, 17, 19 to 22 and 24 filed a written statement stating that except the second item of the suit property, the plaintiffs have no right and in the 2nd item of the suit property, the plaintiffs are entitled only 1/16th share. Similarly, the defendants also did not have any right in respect of suit item Nos.4 and 5. They have also filed a suit in O.S.No.30 of 1988 for declaration and partition of suit in respect of Items Nos.1, 2, 3 and 6. Similarly, the defendants also did not have any right in respect of suit item Nos.4 and 5. They have also filed a suit in O.S.No.30 of 1988 for declaration and partition of suit in respect of Items Nos.1, 2, 3 and 6. The defendants 3 and 4 in O.S.No.30 of 1988 are entitled to 15/16th share and they are in enjoyment of the properties. Further, it is the contention of the defendants that previous suit in O.S.No.665/1968 filed for redemption of mortgage and the decree also executed in the year 1982. The above decree is not valid and not binding on the defendants, as the necessary parties have not been impleaded in the above suit. Hence, prayed for dismissal of the suit. 5. O.S.No.30 of 1988 is filed by the appellants in S.A.No.479 of 1997. It is the case of the appellants that the suit property originally belong to Padmanabahan Kochan. He had two sons namely Padmanabhan and Kunchupoothathan. Since one of the sons Kunchupoothathan had died issueless, Pamanabhan's four sons, namely Kunjan, Raman, Podiyan and Narayanan are entitled to suit properties. The plaintiffs 2 to 7 are the legal heirs of Kunjan and plaintiffs 8 to 13 are the legal heirs of Podiyan. Plaintiffs 14 and 15 are the legal heirs of Raman. Plaintiffs 16 and 17 are the legal heirs of one Joseph s/o. Raman. 6. It is the case of the plaintiffs that they were entitled to absolute title of suit item Nos. 1 to 3 in 'A' Schedule property and also entitled to 15/16 share in 'B' Schedule property. Hence, the suit in O.S.No.30 of 1988 is filed for declaration and partition. The defendants, who are the plaintiffs in other suit, disputed the same and filed written statement submitting that the entire issue has already been decided in O.S.No.665 of 1968. Therefore, the present suit is barred. Both the suits were tried jointly and the Trial Court has framed the following issues:- 1. Whether the plaintiffs in O.S.No.38 of 1985 is entitled for partition as prayed for. 2. Whether the contention of the defendants in O.S.No.38 of 1985 is hit by the principles ofres judicata? 3. The plaintiffs in O.S.No.30 of 1988 is entitled for declaration, injunction and partition as prayed for? 4. Whether the plaintiffs contention in O.S.No.30 of 1988 is hit by principles of res judicata? 5. 2. Whether the contention of the defendants in O.S.No.38 of 1985 is hit by the principles ofres judicata? 3. The plaintiffs in O.S.No.30 of 1988 is entitled for declaration, injunction and partition as prayed for? 4. Whether the plaintiffs contention in O.S.No.30 of 1988 is hit by principles of res judicata? 5. What relief the plaintiffs and defendants are entitled? 7. On the side of the plaintiffs one Sundaran (2nd defendant in O.S.No.38 of 1985) was examined as PW1 and Ex.A1 to Ex.A8 were marked. On the side of the defendants DW1 and DW2 were examined and Ex.B1 to Ex.B46 were marked. Based upon the oral and documentary evidence, the learned Trial Judge has found that the plaintiffs in O.S.No.38 of 1985 are entitled for preliminary decree for ½ share in item Nos.1 to 5 of the suit schedule property and 6/33rd share in the B schedule property and also declared the defendants' share and right of entitlement in the remaining properties. However, dismissed the suit in O.S.No.30 of 1988 on the ground that the defendants have not paid the Court fee and also held that subsequent suit filed by the defendants in O.S.No.30 of 1988 is hit by principles of res judiciata. Aggrieved over the same, two separate appeals were filed before the District Court in A.S.Nos.32 and 45 of 1994. The learned first appellate Judge dismissed the two appeals confirming the judgment of the Trial Court vide judgment dated 25.10.1995. Aggrieved over the same, the present second appeals were filed. While admitting the second appeals, the following substantial questions of law were framed by this Court:- 1. Whether the suit is barred by res-judicata by the institution of earlier redemption suit in O.S.No.665 of 1968? 2. Whether the Courts below erred in mis-directing themselves in failing to consider and advert to the oral and documentary evidence? 8. The learned counsel for the appellants in both the appeals vehemently contended that the earlier suit filed in the year 1968 is only in respect of redemption of certain properties on mortgage. Therefore, when the issue was not direct and substantial in the subsequent suit, the suit filed by the defendants in O.S.No.30 of 1988 is very well maintainable. Both the Courts have simply held that the suit was barred by principles of res judicata. Therefore, when the issue was not direct and substantial in the subsequent suit, the suit filed by the defendants in O.S.No.30 of 1988 is very well maintainable. Both the Courts have simply held that the suit was barred by principles of res judicata. Further it is the contention of the learned counsel for the appellants that the suit schedule properties in the earlier suit is also totally different as that of subsequent suit. Therefore, the Trial Court and the first appellate Court without considering the documentary evidence has simply dismissed the suit. Hence prayed for allowing the second appeals. 9. On the contrary, it the contention of the learned counsel for the contesting respondents that in both the second appeals that the entitlement of the parties in the suit property has been clearly decided in the earlier suit, though the earlier suit was filed for redemption of mortgage. In the above mortgage suit the main issue itself with regard to the right of the parties. In the earlier suit, the predecessor-in-title were parties and they hotly contested the suit and contended that they have every right to mortgage the property on behalf of the family, which was negatived by the Trial Court in O.S.No.665 of 1968 and held that the plaintiffs are entitled to ½ share and the mortgage in respect of the plaintiff's share are not binding. Therefore, redemption was ordered and the remaining ½ share is admittedly goes to the plaintiffs in O.S.No.30 of 1988. Since the properties are undivided one, the plaintiffs in O.S.No.38 of 1985 filed the suit for partition. The Trial Court and the First Appellate Court has considered the entire issue and arrived at the correct findings. 10. It is the further contention of the learned counsel for the respondents that schedule of properties is also one and the same in all the suits. The defendants in O.S.No.38 of 1985 projecting as if the properties are different in the suit filed in the year 1968, and their contention cannot be countenanced since the issue in the earlier suit is same as the issue of the plaintiffs in O.S.No.30 of 1988. Hence, the suit in O.S.No.30 of 1988 is barred by principles of res judicata. Hence prayed for dismissal of the second appeals. 11. Hence, the suit in O.S.No.30 of 1988 is barred by principles of res judicata. Hence prayed for dismissal of the second appeals. 11. In the light of the above submissions and from the perusal of the materials, it could be seen that O.S.No.38 of 1985 was filed for partition and separate possession of the suit property, wherein the plaintiffs claim ½ share in the item Nos.1 to 5 and 6/33 shares in the item No.6. They laid the claim on the basis of the decree and judgment passed in O.S.No.665 of 1968. 12. It is not in dispute that O.S.No.665 of 1968 was filed by one of the plaintiffs for redemption of mortgage executed by the first defendant and others. The above suit was decreed after seriously contest and as against which appeal was filed in A.S.No.93 of 1972, which was also dismissed. Therefore, the above judgment has reached finality. These aspects are not in dispute at all. 13. The suit O.S.No.665 of 1968 filed for redemption of mortgage on the ground that the first defendant in the above suit has no right to mortgage the undivided suit property, since it is an ancestral property. While the first defendant is the minor, his mother executed a mortgage as guardian of the first defendant. The above mortgage was assailed by the plaintiffs in the above suit as co-parceners of joint Hindu Family, and sought to redeem the suit property from the defendants on payment of mortgage money. The above suit was contested by the defendants 3, 4, 5, 9, 10, 12 and 15. 14. In the above suit, the following issues were framed:- 1. Whether the plaint mortgage subsist? 2. Whether plaintiff is a Christian or Hindu? 3. Whether the sale deed in favour of 13th defendant valid and binding on the plaintiff? 4. Has the plaintiff any share in the suit property? 5. Is the suit barred by limitation? 6. Is the plaintiff entitled to redemption prayed for? 7. Whether the share of plaintiff in the suit properties was sold? 8. Is the suit not maintainable? 9. Has plaintiff cause of action against 12th defendant? 10. Reliefs and Costs. Out of 10 issues, issue Nos.4, 6 and 7 are pertaining to the rights of the plaintiffs to claim the right of their share in the suit property. 7. Whether the share of plaintiff in the suit properties was sold? 8. Is the suit not maintainable? 9. Has plaintiff cause of action against 12th defendant? 10. Reliefs and Costs. Out of 10 issues, issue Nos.4, 6 and 7 are pertaining to the rights of the plaintiffs to claim the right of their share in the suit property. In the above suit, one of the plaintiffs in O.S.No.38 of 1985 was a plaintiff. The above suit was hotly contested by the defendants on the ground that the properties already sold to the 3rd defendant without seeking relief of declaration challenging the sale deed, the suit is not maintainable. Negativing the above contention, the Trial Court has held that the plaintiffs' share cannot be subjected to any transfer which made without any legal necessity and ultimately, held that the plaintiffs are entitled to ½ share in the mortgaged properties. The decree and judgment is also challenged on appeal, which is also dismissed. These facts are not in dispute and therefore it has reached finality. 15. It is to be noted that in the above suit, the share of the plaintiffs namely the first plaintiff was determined and the Court held that the plaintiff infact entitled to ½ share in the suit properties. It is to be noted that the suit properties in O.S.No.38 of 1985 are the subject matter of the suit in O.S.No.665 of 1968. Based on the above judgment and decree, the first plaintiff along with his brother, had now filed suit for partition for dividing the ½ share as declared in the suit in O.S.No.665 of 1968. It is also relevant to extract the schedule of property in the above suit. A-schedule “TABLE” 16. In O.S.No.38 of 1985 full suit schedule property has been given. In respect of suit survey field No.1291 to an extent of 1 acre 36 cents, which is shown as item No.2 in O.S.No.665/1998 is also included in the suit filed by the plaintiff in O.S.No.38 of 1985. It is to be noted that one acre 36 cents, in which also ½ share of the plaintiffs decreed in O.S.No.665 of 1968, omitted to be included in the suit schedule of property in O.S.No.38 of 1985. It is to be noted that one acre 36 cents, in which also ½ share of the plaintiffs decreed in O.S.No.665 of 1968, omitted to be included in the suit schedule of property in O.S.No.38 of 1985. Merely because one item has been omitted to be included in the schedule, the same cannot be a ground to hold that the plaintiffs in O.S.No.30 of 1988 are entitled to that extent absolutely. The plaintiffs in O.S.No.30 of 1988 cannot claim such property absolutely. This Court is also found a small discrepancy in item No.5 of suit schedule in O.S.No.38 of 1985. In item No.5, the total extent is shown as 24 cents, in which ½ share is claimed by the plaintiffs in O.S.No.35 of 1985, whereas in O.S.No.665 of 1968 in the Survey No.604 only 4 cents were shown as family properties. Therefore, the plaintiffs claim for ½ share in the item No.5 from 24 cents is not been established. Except this discrepancy, this Court does not find any discrepancy in the schedule of properties. The first schedule of properties mentioned in O.S.No.30 of 1988 also finds place very much in the schedule of properties in O.S.No.665 of 1968, in which the plaintiff's ½ share has been declared. 17. When Evidence of DW1 analysed, it could be seen that the defendants claim right only on the basis of Ex.B4, Ex.B3 and Ex.B40 which are already exhibited in O.S.No.665 of 1968. His evidence also clearly shows that his father was fourth defendant and he is also aware of the fact that his father and his brothers have filed A.S.No.93 of 1972 before the District Court against the judgment and decree in O.S.No.665 of 1968. Though he claims to aware of filing of the appeal, he pleads ignorance of the dismissal of the appeal. His evidence clearly indicate that his predecessor-in-title namely father and his uncle hotly contested the suit in O.S.No.665 of 1968. Though the previous suit in O.S. No.665 of 1968 has filed for redemption of mortgage, the main issue in the above suit itself with regard to the right of the plaintiffs' entitlement in the suit property. As already stated, two specific issues were framed by the Court and the parties went on trial and several documents were marked and the rights have been decided and the entitlement of the plaintiffs' share has been substantially decided in the above suit. As already stated, two specific issues were framed by the Court and the parties went on trial and several documents were marked and the rights have been decided and the entitlement of the plaintiffs' share has been substantially decided in the above suit. When the matter directly and substantially was an issue in a former suit, between one and the same parties, or between the parties under whom there are any claim, under the same title, a subsequent suit is barred by principles of res judicata. It is also well settled that the principles of res judicata operates not only against parties to suit, but also against whom claim right from such parties. Therefore, now the defendants cannot assail the decree and judgment passed in O.S.No.665 of 1968 on the ground that it become nullity, since it was passed without impleading the necessary parties. To apply principles of res judicata it is immaterial whether the previous decision is right or wrong. Correctness or otherwise of the decree and judgment has no bearing upon whether or not operates as res judicata. Therefore, even assuming that the judgment suffers from some infirmity, the judgment between interparties binds a party if the judgment has been passed by the Court of competent jurisdiction. The decree and judgment in O.S.No.665 of 1968 is also marked as Ex.A3 and appeal suit is also marked as Ex.A4. Therefore, the plaintiffs' right in the suit properties were already an issue in the earlier suit which was decided on merits. When the defendants, who claim the title through their predecessor in title and who were contesting parties in the earlier suit, their suit is certainly barred by principles of res judicata. Therefore, this Court does not find any infirmities in the judgment of the learned Trial Court decreeing the suit in O.S.No.38 of 1985 and dismissing the suit in O.S.No.30 of 1988. However, this Court is of the view to modify the preliminary decree in respect of item No.5 in O.S.No.38 of 1985 as far as the extent is concerned. Accordingly, the plaintiffs in O.S.No.38 of 1985 are entitled to ½ share in 4 cents (item No.5). With the above modification, the decree passed by the Trial Court in O.S.No.38 of 1985 is confirmed. 18. It is further to be noted that the defendants ½ share is also determined by the Trial Court in O.S.No.38 of 1985. Accordingly, the plaintiffs in O.S.No.38 of 1985 are entitled to ½ share in 4 cents (item No.5). With the above modification, the decree passed by the Trial Court in O.S.No.38 of 1985 is confirmed. 18. It is further to be noted that the defendants ½ share is also determined by the Trial Court in O.S.No.38 of 1985. However, their suit for partition was dismissed on the ground that Court fee has not been paid. Since the rights of the defendants also declared in the preliminary decree, it is for the defendants in O.S.No.38 of 1985 to work out their remedy in final decree proceedings by paying necessary Court fees for allotment of their respective shares. Accordingly, substantial questions of law are answered. 19. With the above modification, both the second appeals are dismissed. No costs.