JUDGMENT (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree, made in A.S.No.397 of 1994, dated, 06.11.1996 on the file of the Principal District Judge, Tuticorin reversing the judgment and decree made in O.S.No.333 of 1991, dated, 01.11.1994 on the file of the Subordinate Judge, Tuticorin.) Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree, dated, 17.03.2003 on the file of the learned Additional District Judge, Tuticorin passed in A.S.No.52 of 2002 confirming the judgment and decree of the learned Principal District Munsif, Tuticorin passed in O.S.No.269 of 1998, dated, 23.08.2000. Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree made in A.S.No.200 of 1993 on the file of Sub-Court, Tuticorin, dated, 20.02.2004 by reversing the judgment and decree made in O.S.No.506 of 1991 on the file of Additional District Munsif, Tuticorin, dated, 13.09.1993.) Common Judgment: S.A.No.166 of 1997 arises out of a suit in O.S.No.333 of 1991 on the file of Sub-Court, Tuticorin. The said suit was filed for the relief of declaration of title and permanent injunction over first schedule property and for recovery of possession of second schedule property. The suit was decreed by the trial Court. The defendants preferred A.S.No.397 of 1994 before Principal District Court, Tuticorin. The learned appellate Judge was pleased to allow the appeal. As against the same, S.A.No.166 of 1997 has been filed by the plaintiff. 2. S.A.No.666 of 2003 arises out of O.S.No.269 of 1998 on the file of Principal District Munsif Court, Tuticorin. The said suit was filed for the relief of permanent injunction. The suit was dismissed by the trial Court. The plaintiff has filed A.S.No.52 of 2002 before Additional District Court cum Chief Judicial Magistrate, Tuticorin. The learned first appellate Judge concurred with the findings of the trial Court and dismissed the appeal. As against the concurrent findings, the plaintiff has filed the above second appeal. 3. S.A(MD)No.2 of 2004 arises out of O.S.No.506 of 1991 on the file of Additional District Munsif Court, Tuticorin. The suit was filed for the relief of declaration of title and permanent injunction over the first schedule property, recovery of possession of the second schedule property and for mandatory injunction to remove the encroachment in the second schedule property. The suit was dismissed by the trial Court. The suit was filed for the relief of declaration of title and permanent injunction over the first schedule property, recovery of possession of the second schedule property and for mandatory injunction to remove the encroachment in the second schedule property. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.200 of 1993 on the file of Sub-Court, Tuticorin. The learned first appellate Judge was pleased to partly decree the suit, granting the prayer for declaration of title and permanent injunction over first schedule property and for recovery of possession of the second schedule property. The prayer for mandatory injunction was rejected by the first appellate Court. Challenging the said decree, the defendants have filed the above second appeal. 4. Pleadings in S.A.No.166 of 1997: The said suit has been filed with the prayer for declaration of title and permanent injunction over first schedule property and recovery of possession of the second schedule property. An extent of 3.21 cents in Survey No.213/4 and western most 15 cents in Survey No.213/7 is shown as the first schedule property. The north western corner having an extent of 3.67 cents in Survey No.213/7 is shown as the second schedule property. 5. The plaintiffs, who are sisters have contended that the suit schedule property was originally purchased by one Kuppusami Pillai in a Court auction to an extent of undivided 50 cents on 27.12.1930. He has also taken possession pursuant to the said Court auction purchase. According to the plaintiffs, the said Kuppusami Pillai has sold the said undivided extent of 50 cents in favour of one Pirakasi Ammal under Exhibit A.4 on 24.02.1933. The said Pirakasi Ammal has sold the said 50 cents in favour of one Krishnammal under Exhibit A.3 on 11.06.1949. The said Krishnammal has sold the plaint schedule property in favour of the plaintiffs on 06.01.1967 under Exhibit A.2. According to the plaintiffs, they have also purchased another extent of 15 cents in Survey No.213/7 from one Shanmugakani Ammal on 29.01.1987, which is adjacent to the suit property. According to the plaintiffs, the second schedule property is a part of the first schedule property. The defendants have encroached upon the second schedule property in August 1981 and they have put up a thatched shed. Hence, the plaintiffs have filed the present suit. 6. According to the plaintiffs, the second schedule property is a part of the first schedule property. The defendants have encroached upon the second schedule property in August 1981 and they have put up a thatched shed. Hence, the plaintiffs have filed the present suit. 6. On the other hand, the defendants have contended that the suit schedule property and other properties were originally owned by one Iyyam Perumal Nadar and he sold away the western 60 cents in Survey No.213/2 in favour of one Muthukkannu Nadathi on 23.11.1924 under Exhibit B.6. Another extent of 40 cents was purchased by Muthukkannu Nadathi from one Sami Nadar under Exhibit B.7 on 13.09.1929. Thus Muthukkannu Nadathi become the owner of an extent of 1 acre in Survey No.213/2. The defendants had further contended that after the death of Muthukkannu Nadathi, his legal heirs have sold away 60 cents of land in favour of one Azhagu muthu. Out of the balance 40 cents, 13 cents were sold by the legal heirs of Muthukkannu Nadathi in favour of one Pandian under Exhibit B.8 on 17.08.1981. The said Pandian has sold away 13 cents in favour of Sankar Raj under Exhibit B.9 on 09.02.1981. The said Sankar Raj has gifted 8 cents out of his 13 cents for construction of a road under Exhibit B.10 on 08.06.1983. The legal heirs of Muthukkannu Nadathi, who were having the balance 27 cents, sold 11 cents in favour of the first defendant in 213/2A2A under Exhibit B.14 on 10.10.1990. The defendants further contended that the legal heirs of Muthukkannu Nadathi again sold another 14 cents in favour of the second defendant in Survey No.213/2B2B under Exhibit B.15, dated, 10.10.1990. The defendants have further contended that earlier the same plaintiffs have filed a suit for declaration of title and permanent injunction in O.S.No.125 of 1984 before District Munsif Court, Tuticorin against one Vijaya Kumar. The entire extent of undivided 50 cents in Survey No.213/2A was the suit property in the said suit. The said suit was dismissed for default on 23.06.1988. Hence, the present suit is barred under the principles of Res Judicata. 7. The entire extent of undivided 50 cents in Survey No.213/2A was the suit property in the said suit. The said suit was dismissed for default on 23.06.1988. Hence, the present suit is barred under the principles of Res Judicata. 7. The findings of the trial Court and the appellate Court: The trial Court after careful consideration of the oral and documentary evidence, arrived at a finding that the dismissal of O.S.No.125 of 1984 would not operate as Res Judicata, since the suit was not decided on merits. Further, the trial Court found that the property purchased by Muthukannu Nadathi under Exhibit B.6 is only on the western side of Survey No.213/2. However, the plaintiffs are claiming on the eastern side of Survey No.213/2 and hence, the suit is maintainable. The trial Court further held that though the plaintiffs have purchased an undivided 50 cents under Exhibit A.2 on 06.01.1967, they are in enjoyment of specific portion of Survey No.213/2. The trial Court further found that many of the purchasers in the suit survey number though have purchased an undivided portion are in possession of certain specific portions. 8. The trial Court further found that the plaintiffs have produced Exhibit A.13 patta for Survey No.213/7 and Exhibit A.14 patta for Survey No.213/4. These Exhibits A.13 and A.14 will clearly establish the possession of the plaintiffs over the suit schedule properties. Further, the trial Court also found that the plaintiffs have paid tax under Exhibit A.6 to A.12. The trial Court further found that the plaintiffs have purchased the property under Exhibit A.2 in the year 1967, but the defendants are claiming title to the property only based upon the Exhibits B.14 and B.15 of the year 1990. The trial Court further found that a combined reading of Exhibits B.6 and B.7 sale deeds in the name of Muthukkannu Nadathi will clearly indicate that what she has purchased is only on the western side of Survey No.213/2 and not on the eastern side, over which, the plaintiffs make a claim in the present suit. The trial Court further found that Exhibits B.14 and B.15 sale deeds of the defendants indicate Survey Nos.213/2A2A and 213/2B2B. However, the defendants have managed to obtain a patta for Survey No.213/7A and 7B under Exhibits B.22 and B.32. The trial Court further found that Exhibits B.14 and B.15 sale deeds of the defendants indicate Survey Nos.213/2A2A and 213/2B2B. However, the defendants have managed to obtain a patta for Survey No.213/7A and 7B under Exhibits B.22 and B.32. The trial Court also relied upon the Commissioner’s report to arrive at a finding that many persons are in possession of certain specific portions of Survey No.213/2. 9. The trial Court however rejected the contention of the defendants that judgment in O.S.No.506 of 1991 would operate as Res Judicata on the ground that no decree was passed as against the plaintiffs in the present suit. The trial Court also rejected the contention of the defendants that the decree in O.S.No.356 of 1985 would operate as Res Judicata on the ground that the plaintiffs were not parties to the said suit. Based upon the said findings, the trial Court decreed the suit as prayed for. 10. The first appellate Court mainly relied upon the documents on the side of the plaintiffs, namely, Exhibits A.2 to A.5 to arrive at a finding that whatever that has been purchased by the plaintiffs and their predecessors in title is an undivided extent of 50 cents in Survey No.213/2. The first appellate Court further found that when the plaintiffs have purchased an undivided extent of 50 cents in a particular survey number, they will not be entitled to a decree for declaration of title and permanent injunction without establishing the fact that a partition has taken place among the sharers. According to the first appellate Court, the plaintiffs have neither pleaded not proved that there was a partition among the sharers and the suit schedule property was allotted to the share of the plaintiffs or their vendor. The first appellate Court further held that the entire burden is upon the plaintiffs to establish their title and possession over the suit schedule properties. When admittedly the title deeds on the side of the plaintiffs show the possession over an undivided share, the plaintiffs will not be entitled to a decree for declaration of title or permanent injunction. Based upon the said findings, the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. Aggrieved over the same, the plaintiffs have filed the above second appeal. 11. Based upon the said findings, the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. Aggrieved over the same, the plaintiffs have filed the above second appeal. 11. The second appeal has been admitted on the following substantial questions of law: “(i) Whether the conclusion of the lower appellate Court by drawing adverse inference on the non-production of the original documents by the plaintiffs when particularly the certified copy of the same are produced and marked is correct? (ii) Whether the lower appellate Court is correct in holding that the respondents/defendants are in possession of the suit property on their own as per the judgment and decree in O.S.No.800 of 1981 which was filed by one Nataraj Nadar on the file of District Munsif, Tuticorin against one Mookkan Nadar and Ponnu Nadar some of the predecessors in title of the respondents in respect of 8 cents in S.No.213/2? (iii) Whether the purchaser of the plaintiffs in respect of 15 cents in S.No.213/2 from Shanmugha Kani Ammal during the pendency of the suit in O.S.No.356 of 1987 is hit by res judicata as alleged by the defendants when particularly the plaintiffs do not claim any title through the said Shanmugha kani Ammal? (iv) Whether the lower appellate Court is correct in rejecting A.6 to A.10 the kist receipts, merely because the name of the Taluk and District has not been mentioned even through the genuinety of the documents are proved by documents A.15 to A.22 in respect of the nature of the document, given by the village karnam as spoken by P.W.3 independent witness?” 12. The learned counsel for the appellants has contended that the trial Court has elaborately discussed the sale deeds filed on the side of the plaintiffs and compared the said sale deeds with the sale deeds relied upon by the defendants. After careful comparison of the sale deeds of either side, the trial Court had arrived at a categorical finding that the defendants' vendor has purchased only the western 60 cents and he has no title or any interest over the eastern portion of Survey No.213/2. On the other hand, the present suit for declaration of title and permanent injunction has been filed only with regard to the property located on the eastern side of Survey No. 213/2. On the other hand, the present suit for declaration of title and permanent injunction has been filed only with regard to the property located on the eastern side of Survey No. 213/2. When the sale deeds between the parties are compared and the Court arrives at a finding that the plaintiffs are having a better title over the suit schedule properties, the first appellate Court ought not to have interfered in the said findings. The learned counsel for the appellants further contended that the plaintiffs have filed Exhibits A.13 and A.14 patta for the suit schedule property and Exhibits A.6 to A.12 tax receipts for the said property to establish their possession over the suit schedule properties. These documents ought not to have been summarily rejected by the first appellate Court. He further contended that the first appellate Court had failed to see that the defendants have purchased under Exhibits B.14 and B.15 in Survey Nos.213/2A2A and 213/2B2B. However, the defendants have managed to obtain patta under Exhibits B.22 and B.32 for survey Nos.213/7A and 213/7B without any title. Hence, viewed from any angle, the plaintiffs have got a better title and the plaintiffs are in possession of the suit schedule properties. The trial Court has granted a decree after elaborate discussion, but the first appellate Court has reversed it on some minor discrepancies in the oral evidence of the plaintiffs. Hence, he prayed for allowing the second appeal and restoring the judgment and decree of the trial Court. 13. Per contra, the learned counsel for the respondents had contended that nowhere the plaintiffs have contended that they are claiming title over the eastern portion of the Survey No.213/2. Whatever property that has been purchased by the plaintiffs and their vendor is only an undivided extent of 50 cents in Survey No.213/2. When the plaintiffs and their vendor have purchased only an undivided share, a suit for declaration of title and permanent injunction would not lie for some specific portions of Survey No.213/2. On the other hand, the defendants have established that right from the year 1984, they are in enjoyment of the suit schedule properties continuously through their vendors. Though the plaintiffs contended that they have purchased the suit schedule properties in the year 1967, tax has been paid by the plaintiffs only in the year 1991 under Exhibits A.11 and A.12 just before the filing of the suit. Though the plaintiffs contended that they have purchased the suit schedule properties in the year 1967, tax has been paid by the plaintiffs only in the year 1991 under Exhibits A.11 and A.12 just before the filing of the suit. This will clearly indicate that these documents were created for the purpose of filing of the suit and the plaintiffs are not really in possession of the suit schedule properties. 14. The learned counsel for the respondents had further contended that the decree in O.S.No.125 of 1984 has been marked as Exhibit B.4 on the side of the defendants. The said suit was filed by the very same plaintiffs as against one Vijaya Kumar, claiming declaration of title and permanent injunction for the entire extent of undivided 50 cents in Survey No.213/2A. Since the said suit was dismissed for default on 23.06.1988, the present suit filed by the same plaintiffs for a portion of the said property as against different defendants is not maintainable in the eye of law. He further contended that the first appellate Court has carefully re-appreciated the oral and documentary evidence and has arrived at a finding that the plaintiffs have not established their title over the suit schedule properties. Hence, he prayed for dismissal of the second appeal. 15. I have carefully considered the submissions made on either side. 16. The plaintiffs have produced Exhibits A.2 to A.5 sale deeds claiming title over an undivided extent of 50 cents in Survey No.213/2. Out of the said 50 cents, the present suit schedule property is 18.21 cents in new sub-divisions Survey Nos.213/4 and 213/7. First let us consider the objection with regard to the maintainability of the suit raised by the defendants in view of the judgment and decree in O.S.No.125 of 1984 on the file of District Munsif Court, Tuticorin. 17. O.S.No.125 of 1984 has been filed by the very same plaintiffs before District Munsif Court, Tuticorin claiming declaration of title and permanent injunction for an undivided extent of 50 cents in Survey No. 213/2A as against one Vijayakumar. The said suit was dismissed for non prosecution on 23.06.1988. The decree in the said suit has been marked as Exhibit B.4 in the present suit by the defendants. 18. The provisions of Order 9 Rule 9 of Civil Procedure Code is extracted as follows: “9. The said suit was dismissed for non prosecution on 23.06.1988. The decree in the said suit has been marked as Exhibit B.4 in the present suit by the defendants. 18. The provisions of Order 9 Rule 9 of Civil Procedure Code is extracted as follows: “9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 19. Where a suit is dismissed for default due to the non appearance of the plaintiffs, the plaintiffs shall be precluded from bringing a fresh suit in respect of the same cause of action. The only option open to the plaintiffs is to file an application to set aside the said order of dismissal for default and restore the suit to file. Otherwise, the plaintiffs are completely barred from filing a fresh suit on the same cause of action. 20. The provisions of Section 9 of Civil Procedure Code are extracted hereunder: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” As per Section 9 of Civil Procedure Code, the Court will have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Hence, in a case, where a suit has been dismissed for default due to the non appearance of the plaintiffs, any fresh suit filed by the same plaintiffs or any person claiming under the plaintiffs, on the same cause of action cannot be entertained by a civil Court. 21. Hence, in a case, where a suit has been dismissed for default due to the non appearance of the plaintiffs, any fresh suit filed by the same plaintiffs or any person claiming under the plaintiffs, on the same cause of action cannot be entertained by a civil Court. 21. It is settled position of law that though Civil Procedure Code is only a procedural law, some of the provisions of Civil Procedure Code affect the rights and obligations of the parties to the suit. One of the said provisions is Order 9 Rule 9 of Civil Procedure Code. Though Order 9 Rule 9 of Civil Procedure Code speaks about the consequences of the non appearance of the plaintiffs, it would result in taking away the right of the plaintiffs in filing a fresh suit on the same cause of action and hence Order 9 Rule 9 read with Section 9 of Civil Procedure Code should be considered to be a substantive law. 22. The suit in O.S.No.125 of 1984 has been filed by the very same plaintiffs, but against a different defendant, namely, Vijayakumar. The defendants in the present suit are one K.P.Parameshwaran and his wife P.N.Vijaya. Only when the present suit is considered to be hit by the principles of Res Judicata, the parties to the previous suit and the present suit have to be compared. But when the bar under Order 9 Rule 9 read with Section 9 of Civil Procedure Code is considered, it is the personal bar on the plaintiffs from instituting a fresh suit on the same cause of action whether against the same defendants or against different defendants. Just by changing the defendants in the second suit, the plaintiffs cannot wriggle out of the bar created under Order 9 Rule 9 of Civil Procedure Code. That apart, no Court has jurisdiction to entertain such kind of second civil suit on the same cause of action when the first civil suit by the same plaintiffs has been dismissed for default. This relates to the jurisdiction of the civil Court to entertain a suit. Hence, the change of defendants in the second suit will not have any consequence on the jurisdiction of the civil Court to entertain a second suit. 23. This relates to the jurisdiction of the civil Court to entertain a suit. Hence, the change of defendants in the second suit will not have any consequence on the jurisdiction of the civil Court to entertain a second suit. 23. In view of the above said discussion, it is very clear that when the same plaintiffs attempted to get a decree for declaration of title for the entire extent of undivided 50 cents for the same suit survey number in O.S.No.125 of 1984 and let it dismissed for non prosecution, the present suit on the same set of documents and pleadings as against a different defendant is not at all maintainable. The trial Court without properly appreciating the legal effect and consequence of dismissal of O.S.No.125 of 1984, which affects the jurisdiction of the Court to entertain the present suit, has proceeded to decree the suit on the basis of merits. The first appellate Court though has reversed the judgment and decree of the trial Court on merits has also not properly appreciated the legal effect of Exhibit B.4 decree. 24. In view of the above said discussion, this Court arrives at a finding that the present suit filed by the plaintiffs in O.S.No.333 of 1991 on the file of the Sub-Court, Tuticorin is not maintainable in view of the bar under Order 9 Rule 9 read with Section 9 of Civil Procedure Code. The trial Court has erroneously decreed the suit and the first appellate Court has reversed it on merits without considering the maintainability of the suit. In view of the above said discussion, the second appeal is dismissed, confirming the judgment and decree of the first appellate Court. No costs. 25. S.A(MD)No.2 of 2004: This second appeal has been filed by the said Vijayakumar, who was the defendant in O.S.No.125 of 1984 as against the plaintiffs in O.S.No. 125 of 1984. The prayer in the present suit is for the relief of declaration of title and permanent injunction over first schedule property and for recovery of possession of the second schedule property. The plaintiff has contended that the suit schedule property was originally owned by one Gnanasigamani Nadar and others. They have executed a registered settlement deed in favour of one Suvisesha Muthu Nadar with regard to 33 cents located in the center of Survey No.213/2. The plaintiff has contended that the suit schedule property was originally owned by one Gnanasigamani Nadar and others. They have executed a registered settlement deed in favour of one Suvisesha Muthu Nadar with regard to 33 cents located in the center of Survey No.213/2. The plaintiff has further contended that another 33 cents owned by Ponnu Muthu Nadar was gifted in favour of the same Suvisesha Muthu Nadar, which is located on the southern side of Survey No.213/2 under Exhibit A.2, dated, 19.09.1973. According to the plaintiff, the said Suvisesha Muthu Nadar has executed a registered sale deed in favour of the plaintiff for the entire extent of 66 cents under Exhibit A.3 on 30.06.1977. According to the plaintiff, the second schedule property is part of the first schedule property. The plaintiff has further contended that the defendants have encroached over the suit schedule properties on 24.10.1991 and hence, he prayed for declaration of title and permanent injunction over first schedule property and for recovery of possession of second schedule property and for mandatory injunction for removal of the constructions in the second schedule property. 26. The defendants have filed a written statement tracing their title as per the plaint in O.S.No.333 of 1991, which has culminated in S.A.No.166 of 1997 before this Court. 27. The plaintiff has further relied upon the decree in O.S.No.125 of 1984, which has been marked as Exhibit A.12 in the present suit. 28. The trial Court had dismissed the suit filed by the plaintiff on the ground that the defendants have established their title over the suit schedule properties, but the plaintiff has not established his title over the suit schedule properties. However, on appeal, the first appellate Court reversed the judgment and decree of the trial Court and partly decreed the suit with regard to declaration of title and permanent injunction over first schedule property and recovery of possession over second schedule property. The prayer for mandatory injunction sought by the plaintiff was rejected by the first appellate Court. As against the said decree of the first appellate Court, the said defendants have filed the present second appeal. 29. The prayer for mandatory injunction sought by the plaintiff was rejected by the first appellate Court. As against the said decree of the first appellate Court, the said defendants have filed the present second appeal. 29. This second appeal has been admitted on the following substantial questions of law: “(i) Whether the lower appellate Court can reverse a decree by admitting before it several documents namely Ex.15 to 24 before it and reverse a decree without considering the documents filed before the trial Court. (ii) Whether the lower appellate Court right in reversing the judgment of the trial Court when the appellants predecessor purchased the suit property under Exhibit B.1 from the Court auction purchaser.” 30. The learned counsel for the appellants had contended that the plaintiffs have already established their title in O.S.No.333 of 1991. In the present case, the plaintiff though relied upon Exhibits A.1 to A.3 claiming title over the suit schedule properties, he has not established the title of their vendor. Hence, the trial Court after proper appreciation of the oral and documentary evidence, has dismissed the suit filed by the plaintiff. He further contended that the first appellate Court has erroneously reversed the judgment and decree of the trial Court and granted a decree for the plaintiff. He further contended that first appellate Court has received ten documents as additional evidence across the bar without following the procedure as contemplated under Order 41 Rule 27. Only based upon the said documents, the suit has been decreed in favour of the plaintiff and hence, he prayed for allowing the second appeal. 31. Per contra, the learned counsel for the respondents contended that the first appellate Court has properly appreciated the oral and documentary evidence on either side and has also considered the legal effect of judgment and decree in O.S.No.125 of 1984 and thereafter, partly decreed the suit as prayed for. Hence, he prayed for dismissal of the second appeal. 32. I have carefully considered the submissions made on either side. 33. As discussed in S.A.No.166 of 1997, the decree in O.S.No.125 of 1984 will clearly bar Annathai Ammal and others (the defendants herein) from filing a fresh suit on the same cause of action. Hence, he prayed for dismissal of the second appeal. 32. I have carefully considered the submissions made on either side. 33. As discussed in S.A.No.166 of 1997, the decree in O.S.No.125 of 1984 will clearly bar Annathai Ammal and others (the defendants herein) from filing a fresh suit on the same cause of action. As a plaintiffs, when Annathai Ammal and others will not have any right to approach a Court to get a declaration of their title, as a defendant whether the same parties would be entitled to claim title to the same suit schedule properties is the question to be decided. The defendants, namely, Annathai Ammal and others would not be entitled to directly file a civil suit claiming declaration of title. As a defendant, on the same set of pleadings and documents, they cannot be permitted to claim title to the suit schedule properties. What cannot be done directly cannot be permitted to be done indirectly. However based upon the said weakness of the defendants in the present suit, the plaintiff would not be entitled to get a decree unless he pleads and proves his title and possession over the suit schedule properties. The plaintiff has relied upon Exhibits A.1 to A.3 to establish his title over the suit schedule properties. The plaintiff has also filed Exhibits A.5 to A.7 tax receipts and Exhibit A.4 patta. 34. The plaintiff has also filed Exhibits A.9 judgment and A.10 decree in A.S.No.77 of 1987. The said suit was filed by one Shanmuga Kani Ammal as against the present plaintiff Vijayakumar and others for declaration of title and injunction for an extent of 63 cents in S.No.213/ 2. The said suit was dismissed on 04.03.1987 and the appeal filed by Shanmuga Kani Ammal in A.S.No.77 of 1987 on the file of the Sub-Court, Tuticorin was also dismissed on 07.07.1992. Hence, according to the plaintiff, his title to the suit schedule property was confirmed in the said proceedings. However, it is to be noted that the present defendants, namely, Annathai Ammal and others were not parties to the said suit. Hence, the said judgment under Exhibits A.9 and A.10 cannot be relied upon by the plaintiff as against the present defendants. 35. The plaintiff is claiming title to the suit schedule properties based upon Exhibits A.1 to A.3. However, it is to be noted that the present defendants, namely, Annathai Ammal and others were not parties to the said suit. Hence, the said judgment under Exhibits A.9 and A.10 cannot be relied upon by the plaintiff as against the present defendants. 35. The plaintiff is claiming title to the suit schedule properties based upon Exhibits A.1 to A.3. On the other hand, the defendants are claiming title on the basis of their purchase of an undivided share of 50 cents under Exhibit B.1, dated, 06.01.1967. When comparing the title of the plaintiff and the defendants, the plaintiff has got a better title than the defendants. The defendants in the present suit has suffered a decree in O.S.No.125 of 1984 with regard to the same suit schedule properties. The trial Court without properly appreciating the oral and documentary evidence and considering the legal effect of Exhibit A.12 decree, has dismissed the suit. On the other hand, the first appellate Court after re-appreciating the oral and documentary evidence has partly decreed the suit. 36. In view of the above said discussion, I do not find any illegality or perversity in the judgment and decree of the first appellate Court and the same is confirmed. The Second Appeal is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 37. S.A.No.666 of 2003: The plaintiff in the suit is none other than the purchaser from Vijayakumar, who is the plaintiff in O.S.No.506 of 1991, which has culminated in S.A(MD)No.2 of 2004. This Court has already arrived at a finding that Vijayakumar has established his title and possession over the suit schedule properties as per the findings in S.A(MD)No.2 of 2004. 38. In the present suit, the plaintiff who is the purchaser from said Vijayakumar has contended that he has purchased 16 cents of land in Survey No.213/6 from the said Vijayakumar under Exhibit A.8 on 05.12.1997. He has further contended that he has purchased another 16 cents in Survey No. 213/6 from Vijayakumar under Exhibit A.9 on 20.01.1998. Since there is no dispute with regard to the title, he claimed a decree for permanent injunction as against the defendants. 39. The defendants have pleaded that they have purchased the suit schedule properties from one Shanmuga Kani Ammal under Exhibit A. 15 on 03.02.1992. The defendants have purchased an extent of 15 cents in Survey No.213/6. Since there is no dispute with regard to the title, he claimed a decree for permanent injunction as against the defendants. 39. The defendants have pleaded that they have purchased the suit schedule properties from one Shanmuga Kani Ammal under Exhibit A. 15 on 03.02.1992. The defendants have purchased an extent of 15 cents in Survey No.213/6. On the basis of the said sale deed, the defendants claim title to the suit schedule properties. 40. The second appeal has been admitted on the following substantial questions of law: Whether the findings of the Courts below are vitiated on their failure to consider the documentary evidence in Exhibits A.2, A.3, A.10 and A.11 to A.14 and also the other available evidence in its proper perspective? 41. The learned counsel for the appellant had contended that already the defendants' vendor, namely, Shanmuga Kani Ammal had filed O.S.No.356 of 1985 on the file of District Munsif Court, Tuticorin, claiming declaration of title and injunction over 63 cents of land in Survey No. 213/2(which has now been subdivided as Survey No.213/6 and 213/7) as against the present plaintiff's vendor and legal heirs of one Muthukkannu Nadathi. The said suit was dismissed by the trial Court on 04.03.1987. The appeal filed by the said Shanmuga Kani Ammal in A.S.No.77 of 1987 on the file of the Sub-Court, Tuticorin was also dismissed on 07.07.1992. The present first defendant has purchased the suit schedule properties from the said Shanmuga Kani Ammal on 03.02.1992 when the first appeal was pending before the Sub-Court, Tuticorin. Hence, the first defendant is only a lis pendens purchaser. Thereafter, A.S.No.77 of 1987 has been dismissed on 07.07.1992, which was not challenged by the defendants' vendor Shanmuga Kani Ammal and hence, the said judgment has become final. When the present defendant claims title under Shanmuga Kani Ammal, whose prayer for title has been rejected by the Courts below, the defendants cannot claim title in the present suit. 42. On the other hand, the present plaintiff has purchased from the successful defendant in O.S.No.356 of 1985, namely, Vijayakumar and hence, he is entitled to a decree as prayed for. However, erroneously the trial Court as well as the first appellate Court have dismissed the suit and the appeal without considering the legal effect of O.S.No.356 of 1985. 43. 42. On the other hand, the present plaintiff has purchased from the successful defendant in O.S.No.356 of 1985, namely, Vijayakumar and hence, he is entitled to a decree as prayed for. However, erroneously the trial Court as well as the first appellate Court have dismissed the suit and the appeal without considering the legal effect of O.S.No.356 of 1985. 43. Per contra, the learned counsel for the respondents had contended that the property that is covered in O.S.No.356 of 1985 is completely different from the property that is in dispute in the present suit. That apart, just because the suit of Shanmuga Kani Ammal was dismissed, it does not mean that the plaintiff's vendor Vijayakumar has got title over the suit schedule properties. Hence, he prayed that the second appeal may be dismissed, confirming the judgment and decree of the Courts below. 44. I have carefully considered the submissions made on either side. 45. The suit register in O.S.No.356 of 1985 has been marked as Exhibit A.4. A judgment in A.S.No.77 of 1987 has been marked as Exhibits A.6 and A.7. A perusal of the said judgments and decrees clearly demonstrate that one Shanmuga Kani Ammal has filed a suit as against the plaintiff's vendor Vijayakumar and others for declaration of title and permanent injunction for an extent of 63 cents in Survey No.213/2. The said suit was dismissed on merits by the trial Court on 04.03.1987. The Shanmuga Kani Ammal had filed A.S.No.77 of 1987 before Sub-Court, Tuticorin. While the same was pending, Shanmuga Kani Ammal has sold the suit schedule properties in favour of the present defendants under Exhibit A.15 on 03.02.1992. Thereafter, the first appeal filed by Shanmuga Kani Ammal was dismissed on 07.07.1992. 46. A careful perusal of the pleadings of Shanmuga Kani Ammal in A.S.No.77 of 1987 will clearly demonstrate that she is the owner of 1 acre and 5 cents in the said Survey No.213/2 and after alienating some portions of the property, the balance of property that is available with Shanmuga Kani Ammal is 63 cents. For the said entire 63 cents, she has filed O.S.No. 356 of 1985. Only out of the said 63 cents, the present defendant has purchased 15 cents in the new subdivision, namely, Survey No.213/6 from Shanmuga Kani Ammal that too when the first appeal was pending before Sub-Court, Tuticorin. For the said entire 63 cents, she has filed O.S.No. 356 of 1985. Only out of the said 63 cents, the present defendant has purchased 15 cents in the new subdivision, namely, Survey No.213/6 from Shanmuga Kani Ammal that too when the first appeal was pending before Sub-Court, Tuticorin. Hence, the contention of the respondents/defendants that the present suit schedule property is completely different from that of the suit property in O.S.No.356 of 1985 is not factually correct. 47. In O.S.No.356 of 1985, the predecessor in title of the defendant, namely, Shanmuga Kani Ammal Ammal was the plaintiff. The predecessor in title of the present plaintiff, namely, Vijayakumar was the first defendant in O.S.No.356 of 1985. Hence, the predecessor in interest of both the plaintiff and the defendants were parties to O.S.No.356 of 1985 and a decree has been passed on merits. Hence, the said decree would operate as res-judicata in the present suit. 48. The present defendant has purchased the suit schedule properties while appeal filed by her vendor in A.S.No.77 of 1987 was pending and hence, the sale in favour of the first defendant is hit by principles of lis pendens. Though sale during lis pendens is not void, the same is subject to the result of the suit or appeal. The appeal filed by the present defendants' vendor was dismissed on 07.07.1992. The said dismissal was not challenged by the present defendants' vendor and it has become final. Hence, it is clear that the first defendant has got no title over the suit schedule properties. On the other hand, the plaintiff has purchased the suit schedule properties from the successful defendant in O.S.No.356 of 1985. Hence, the plaintiff has established his title and possession over the suit schedule parties. Since the title between the parties has already been established in O.S.No.356 of 1985, the present suit for bare injunction is maintainable without a prayer for declaration of title. 49. The trial Court as well as the appellate Court have dismissed the suit without properly appreciating the pleadings and the documents filed on either side, especially Exhibits A.4 to A.7 which relate to the proceedings in O.S.No.356 of 1985. 50. In view of the above said discussion, all the substantial questions of law are answered in favour of the appellant. The trial Court as well as the appellate Court have dismissed the suit without properly appreciating the pleadings and the documents filed on either side, especially Exhibits A.4 to A.7 which relate to the proceedings in O.S.No.356 of 1985. 50. In view of the above said discussion, all the substantial questions of law are answered in favour of the appellant. The judgment and decree passed by the trial Court as well as the first appellate Court are set aside. The suit in O.S.No.269 of 1998 on the file of the Principal District Munsif Court, Tuticorin is decreed as prayed for. The second appeal is allowed. No costs. S.A.No.166 of 1997 is dismissed. No Costs. S.A.No.666 of 2003 is allowed. No costs. S.A(MD)No.2 of 2004 is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.