JUDGMENT (Prayer: This Appeal Suit has been filed, under Order 41 Rule 1 read with Section 96 of CPC, against the judgement and decree, dated 09.01.2015, made in OS.No.7473 of 2010, by the XVI Additional Judge, Chennai.) 1. This Appeal Suit has been filed, by the Defendants, against the judgement and decree, dated 09.01.2015, made in OS.No.7473 of 2010, by the XVI Additional Judge, Chennai. 2. The suit was filed for declaration that the Plaintiff is the absolute owner of the suit property and for permanent injunction and for costs. 3. The case of the Plaintiff is that the suit property originally belonged to Valliammal and she had two daughters, viz, Alamelu Ammal and Chinnakannnu Ammal. On the death of Valliammal, who died intestate, her daughters were entitled to equal shares in the property. Alamelu Ammal died leaving behind her son Harikrishnan, who died leaving behind his wife Gangammal, two sons viz., Duraikannu and Parthasarathy and two daughters, viz., Rukkuammal and Sarasammal. The legal heirs of Harikrishnan entered into a registered partition deed, dated 02.04.1987. As per the partition deed, the suit property belonged to the legal heirs of Harikrishnan and the sons were allotted 546 square feet each together with a 3 feet common pathway. The daughters, Rukkuammal and Sarasammal had executed a registered release deed on 13.03.1996, with respect to their share in favour of Duraikannu and Parthasarathy. On 07.07.1997 Parthasarathy and his wife had sold his share of 546 square feet on the Western side to Dharani. The said Dharani had sold 226 square feet along with a pathway to one D.Nagajyothi on 18.08.1997. The remaining 260 square feet along with a pathway was sold on the same date to the Plaintiff. On 24.09.1997, D.Nagajyothi had sold 226 square feet along with the pathway to the Plaintiff. On 24.09.1997, the Plaintiff had purchased the pathway measuring 42 square feet from V.Selvarani. Thus, the Plaintiff is the absolute owner of the property in Rs.No.2853/3,4,5. On 15.12.2000, A.S.Mani father of Dharani had executed a sale deed with respect to the suit property in favour of the 1st Defendant. Dharani had sold the property in favour of one Nagajyothi who in turn had sold the property in favour of the Plaintiff. Thus, the Plaintiff is the absolute owner of the property in Rs.No.2853/3,4,5. On 15.12.2000, A.S.Mani father of Dharani had executed a sale deed with respect to the suit property in favour of the 1st Defendant. Dharani had sold the property in favour of one Nagajyothi who in turn had sold the property in favour of the Plaintiff. On 18.08.1997, on the death of Dharani in 1991, his father A.S.Mani, claiming to be the sole legal heir of the deceased Dharani had executed a sale deed in favour of the 1st Defendant on 15.12.2000. Based on the sale deed executed by A.S.Mani, the 1st Defendant claims right and attempted to interfere with the suit property. In such circumstances, the suit had been filed, seeking the reliefs, as stated above. 4. The case of the Defendants, in a nutshell, as set out in the written statement, is that the suit is hit by the doctrine of res judicata. The suit property, originally belonged to Venkatasala Mudaliar and his wife Valliammal. On 17.4.1922, they executed a Will in favour of their daughter Alamelu with respect to 1200 square feet in Rs.No.2853 and with respect to other properties, in favour of Chinnakannu Ammal. Alamelu Ammal died, leaving behind her son Harikrishnan and daughter Kuppammal. On the death of Harikrishnan, his wife Gangammal, his two sons Duraikannu and Parthasarathy partitioned the property, whereby Parthasarathy was allotted 546 square feet. Gangammal and her two daughters Rukkuammal and Saraswathy Ammal had executed a release deed in favour of Duraikannu and Parthasarathy on 13.03.1996. Since the daughter of Kuppammal viz., Kamalammal was not added as a party in the partition deed, she had filed a suit in OS.No.3962 of 1991 for partition of 1200 square feet in Rs.No.2853. Pending the said suit, Parthasarathy had sold the share allotted to him under the partition deed to one Dharani on 07.07.1997. But, on 01.10.1997 a preliminary decree was passed in the said suit and a final decree was also passed on 1.10.1997, allotting 547 square feet to Kamalammal. On 24.03.1999, Dharani died as a bachelor leaving behind his father A.S.Mani as his legal heir. The Defendant contended that without being aware of the suit filed by Kamalammal in OS.No.3962 of 1991, the 1st Defendant had purchased 547 square feet in Rs.No.2853(p) from A.S.Mani on 15.12.2000 and since then the 1st Defendant is in possession of the property. On 24.03.1999, Dharani died as a bachelor leaving behind his father A.S.Mani as his legal heir. The Defendant contended that without being aware of the suit filed by Kamalammal in OS.No.3962 of 1991, the 1st Defendant had purchased 547 square feet in Rs.No.2853(p) from A.S.Mani on 15.12.2000 and since then the 1st Defendant is in possession of the property. Subsequently, the 1st Defendant came to know that the property purchased by him from A.S.Mani was allotted to Kamalammal as her share on 04.02.2000 under a final decree. Since there was neither an appeal nor a petition to set aside the exparte decree, the 1st Defendant had offered to purchase the property from Kamalammal to set right the records and thereby they entered into a sale agreement on 20.11.07 with Kamalammal. In December 2007, one Jayakumar claiming to be the power agent of the Plaintiff, attempted to trespass into the possession of the 1st Defendant . Since Jayakumar and the Plaintiff preferred a false complaint, 1st Defendant was allowed to get suitable orders from the Court. Hence, the 1st Defendant filed OS.No.378 of 2008. On 25.03.2008, an exparte decree was passed by the VI Assistant City Civil Court. Pursuant to the sale agreement by the 1st Defendant with Kamalammal dated 20.11.2007, a sale deed was executed by Kamalammal in favour of the 1st Defendant on 15.12.2008. Subsequently, the 2nd Defendant had approached the 1st Defendant for purchasing the suit property along with the super structure. Consequently, the 1st Defendant had executed a sale deed in favour of the 2nd Defendant on 21.01.2009 and on the same date, possession was handed over to the 2nd Defendant . Since then the 2nd Defendant is in possession and enjoyment of the property. The Plaintiff claims title under Dharani, who did not have any title over the property. Valliammal and Venkatasala Mudaliar did not die intestate. They had executed a registered Will on 17.4.1922, bequeathing the properties to her daughter Andalammal (Alamelu Ammal) and Chinnakannamal. Alameluammal was survived by her daughter Kuppammal and son Harikrishnan. The daughter of Kuppammal viz., Kamalammal became the owner of the entire suit property pursuant to the final decree passed in O.S.No.3962 of 1991. The 1st Defendant had purchased the property from Kamalammal, from whom the second Defendant had purchased and since then she is in possession of the property. Alameluammal was survived by her daughter Kuppammal and son Harikrishnan. The daughter of Kuppammal viz., Kamalammal became the owner of the entire suit property pursuant to the final decree passed in O.S.No.3962 of 1991. The 1st Defendant had purchased the property from Kamalammal, from whom the second Defendant had purchased and since then she is in possession of the property. The Plaintiff is not the owner and is not in possession of the property. Hence, the suit is liable to be dismissed. a) In such circumstances, the suit is liable to be dismissed. 5. On the pleadings of the parties, the following issues were framed by the Trial Court:- 1. Whether the Plaintiff is entitled for declaration as the owner of the suit property? 2. Whether the Plaintiff is entitled for permanent injunction restraining the Defendants from disturbing the peaceful possession of the property? 3. Whether the Plaintiff is entitled for permanent injunction restraining the Defendants from dealing with the property by way of sale mortgage or in any other manner? 4. To what other relief? 6. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to Ex.A18 were marked and PW.1 was examined. On the side of the Defendants, Ex.B1 to Ex.B7 were marked and DW.1 was examined. The Trial Court had decreed the suit, as prayed for. Aggrieved against the same, this Appeal Suit has been filed by the Defendants. 7. This Court heard the submissions of the learned counsel on either side. 8. The learned counsel for the Appellants has submitted that the Respondent has filed the suit for declaration and permanent injunction. The Appellants resisted the suit mainly on the ground that he purchased the property from Kamalammal, who obtained her share by a final decree. The 1st Appellant purchased the suit property from Kamalammal by a sale deed dated 15.12.2008. So, he purchased the property from the original owner. Originally the property belonged to Valliammal and Valliammal has got two daughters by name, Alameluammal and Chinnakannammal. After Valliammal, her daughters are each entitled to half share. Alameluammal died leaving behind Harikrishnan and Kuppammal and she died intestate and then partition took place between the sons of Harikrishnan, Duraikannu and Parthasarathy. Kuppammal is not a party in the partition deed. Then, Kuppammal's daughter Kamalammal filed a suit and obtained a final decree and got a share. After Valliammal, her daughters are each entitled to half share. Alameluammal died leaving behind Harikrishnan and Kuppammal and she died intestate and then partition took place between the sons of Harikrishnan, Duraikannu and Parthasarathy. Kuppammal is not a party in the partition deed. Then, Kuppammal's daughter Kamalammal filed a suit and obtained a final decree and got a share. From Kamalammal, the 1st Appellant purchased the suit property and so, he is enjoying the property as absolute owner. The Plaintiffs are not in possession of the property. Suppressing the vital facts, they filed a suit and obtained a decree. The court below has not considered the oral and documentary evidence and erred in decreeing the suit and hence, the appeal is liable to be allowed. 9. The learned counsel for the Respondent would submit that originally the property belonged to Valliammal. Valliammal died intestate and her two daughters, namely, Chinnakannammal and Alameluammal are each entitled to half share and Alameluammal died intestate, leaving behind her son, Harikrishnan. Harikrishnan died, leaving behind his wife, Gnanammal, his sons, Duraikannu, Parthasarathy and his daughters, Rukkuammal and Sarasammal. The legal heirs of Harikrishnan entered into a partition. In that partition, each sons were allotted 546 sq.ft. of land. Rukkuammal and Sarasammal executed a release deed in favour of Duraikannu and Parthasarathy. Parthasarathy sold his share of 546 sq.ft. in favour of Duraikannu. Dharani sold half of the property to Nagajothi and the remaining half share to this Respondent. This Respondent purchased half of the portion from Nagajothi. Therefore, he is the sole and absolute owner of the property. The 1st Appellant purchased the property from one Mani, father of Dharani and the 1st Defendant claims right and attempted to interfere with the suit property. The court below appreciated all the oral and documentary evidence came to the proper conclusion and hence, this appeal is liable to dismissed. 10. This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record. 11. There is no dispute between the parties that the property originally belonged to Valliammal and her two daughters are each entitled to half share in the property. 12. PW.1 has deposed that the property belonged to Valliammal. Valliammal died intestate, leaving behind her two daughters, Alameluammal and Chinnakannammal. Alameluammal and Chinnakannammal are entitled to equal share in the property. 11. There is no dispute between the parties that the property originally belonged to Valliammal and her two daughters are each entitled to half share in the property. 12. PW.1 has deposed that the property belonged to Valliammal. Valliammal died intestate, leaving behind her two daughters, Alameluammal and Chinnakannammal. Alameluammal and Chinnakannammal are entitled to equal share in the property. Alameluammal died leaving, behind her son Harikrishnan. Harikrishnan died leaving behind Gangammal his wife, Duraikannu and Parthasarathy as his sons and Rukkuammal and Sarasammal, as his daughters. The said legal heirs of Harikrishnan entered into a partition deed, dated 2.4.1987. In that partition deed, the sons were each allotted 546 sq.ft. of land. The daughters, Rukkuammal and Sarasammal executed a release deed in favour of their brothers, Duraikannu and Parthasarathy. On 7.7.1997, Parthasarathy along with his wife sold half of his share to Dharani. 13. A perusal of Ex.A3 reveals that Parthasarathy and his wife sold the property to Dharani. 226 sq.ft. of land was sold to Nagajothi on 18.8.1997. A perusal of Ex.A4 reveals that Nagajothi purchased the property from Dharani. Dharani sold the other half share under the sale deed, dated 18.08.1997. A perusal of Ex.A5 reveals that Amul purchased the property from Dharani. Nagajothi sold the property under the sale deed dated 24.09.1997 to this Plaintiff. Therefore, he became the sole and absolute owner of the property. In 2000, the father of Dharani, Mani sold the property under the sale deed, dated 15.12.2000 to the 1st Defendant. Mani is dealing with the property as a legal heir of Dharani. Dharani already sold the property to Nagajothi and this Plaintiff. Dharani himself having already sold the property during his life time, A.S.Mani, father of Dharani cannot claim to be a legal heir of Dharani and cannot sell the same property to the 1st Defendant. It cannot confer any right to the 1st Defendant. He deposed that he is alone the sole and absolute owner of the property. 14. DW.1 has deposed that he initially purchased the property from Mani. The suit property originally owned by Valliammal. After the demise of Valliammal, Alameluammal and Chinnakannammal inherited the same. Alameluammal died intestate leaving behind her son Harikrishnan Mudaliar and her daughter Kuppammal as her legal heir. 14. DW.1 has deposed that he initially purchased the property from Mani. The suit property originally owned by Valliammal. After the demise of Valliammal, Alameluammal and Chinnakannammal inherited the same. Alameluammal died intestate leaving behind her son Harikrishnan Mudaliar and her daughter Kuppammal as her legal heir. After the demise of Harikrishnan Mudaliar, who died intestate, his legal heirs, his wife Gnanammal and his two sons, Duraikannu and Parthasarathy partitioned the suit property on 2.4.1987. In that partition, the suit property was allotted to Parthasarathy as his share. During the year 2001, he came to understand that one Kamalammal had filed OS.No.3962 of 1992 before the City Civil Court, for partition. Kamalammal, who is the sole legal heir of Kuppammal, was not made as a party to the said partition deed. Pending the suit, Parthasarathy sold the property to Dharani on 7.7.1997. On 1.10.1997 an exparte preliminary decree and a judgement and decree were passed. 15. In Ex.B2, it is mentioned as “TAMIL”. 16. The City Civil Court was pleased to pass a final decree on 4.2.2000. in Ex.B4, it is mentioned as “TAMIL” 17. With a view to set right the records, he purchased the property from Kamalammal by a sale deed dated 12.2.2008. A perusal of Ex.B5 reveals that the 1st Defendant purchased the property from Kamalammal. In view of the said sale deed, the 1st Defendant prescribed his title and became legal and lawful owner of the suit property. On 21.1.2009, he sold the property to the 2nd Defendant. The 2nd Defendant is in peaceful possession and enjoyment and occupation of the suit property. 18. PW.1 has deposed that “TAMIL” This is not properly explained by the Respondent. In his proof affidavit, he never stated anything about Ex.B2, Ex.B3 and Ex.B4. All these documents relate to Kamalammal. Through these documents, she got right over the property. Then, she sold the property under the registered sale deed to the 1st Defendant. Parthasarathy sold the property to Dharani in 1997. This will clearly establish that while pending the suit, the property was alienated. Later on, Kamalammal obtained a final decree, marked as Ex.B4. Then, she sold the property to the 1st Defendant. The orders passed by the lower court in Ex.B2, Ex.B3 and Ex.B4 are not challenged by the legal representatives of Harikrishnan. These aspects are not clearly analysed by the Trial Court. Later on, Kamalammal obtained a final decree, marked as Ex.B4. Then, she sold the property to the 1st Defendant. The orders passed by the lower court in Ex.B2, Ex.B3 and Ex.B4 are not challenged by the legal representatives of Harikrishnan. These aspects are not clearly analysed by the Trial Court. Hence, the Trial Court erred in decreeing the suit and the impugned judgement of the Trial Court is liable to be side. 19. In fine, this Appeal Suit is allowed. No costs.