Saraswathi Ammal and Others vs G. Durairaj

R. Mala, J.—The second appeal arises out of the judgment and decree dated 20.09.2002 made in A.S. No. 64 of 2001 on the file of the Principal District Court, Tiruvannamalai, reversing the judgment and decree dated 10.04.2001 and made in O.S. No. 37 of 1996 on the file of the Additional Sub-Court, Tiruvannamalai.

The averments made in the plaint are as follows:--

"(i) The suit property originally belonged to the plaintiff''s paternal uncle Balasubramania Chettiar. After marriage, the first defendant namely, Saraswathi Ammal did not live with Balasubramania Chettiar and had left him. She was living at Valavanoor along with her brother. The second defendant is the adopted son of the first defendant. The first defendant, who worked as a Teacher has now retired from service. The first defendant filed a suit for maintenance against her husband Balasubramania Chettiar in O.S. No. 412 of 1962 on the file of the Principal District Munsif Court, Tiruvannamalai and obtained decree on 31.08.1962. Thereafter, she filed E.P. No. 402 of 1988 for realisation of the maintenance arrears amount.

(ii) Being his brother''s son Balasubramania Chettiar used to be affectionate with the plaintiff, and the plaintiff used to assist him. So the said Balasubramania Chettiar requested the plaintiff to pay the E.P. amount due to the first defendant. Thereupon, the plaintiff filed E.A. No. 88 of 1990 seeking permission to pay the amount due to the decree holder and after permission was granted by the Court, the plaintiff herein paid the entire maintenance amount payable by Balasubramania Chettiar to the first defendant.

(iii) On 28.12.1990, Balasubramania Chettiar in a sound and disposing state of mind, voluntarily executed a Will bequeathing all his properties in favour of the plaintiff. In the 3rd week of January 1994, Balasubramania Chettiar handed over that Will to the plaintiff and he died on 29.01.1994. So the Will dated 28.12.1990 came into effect from 29.01.1994. The plaintiff took possession of the suit property as its absolute owner and has been in lawful possession and enjoyment of the same.

(iv) In or about 15.02.1996, the first defendant who never looked after her husband Balasubramania Chettiar for more than 35 years started claiming rights over the suit property and that the first defendant attempted to trespass into the suit property. Therefore, the plaintiff has filed a suit for declaration of title and interest over the suit property and for permanent injunction restraining the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the suit property and for costs. Thus, he prayed for decree."

The gist and essence of the written statement filed by the first defendant and adopted by the second defendant are as follows:

"(i) The suit is unsustainable either in law or on facts. Originally, the suit property belonged to the husband of the first defendant namely, Balasubramania Chettiar and the first defendant is living at Valavanoor along with her brother. She also filed a suit in O.S. No. 412 of 1962 and obtained decree and filed E.P. No. 402 of 1988 for realisation of maintenance arrears.

(ii) The said Balasubramania Chettiar never executed a Will in favour of the plaintiff. Taking advantage of the fact that the first defendant is residing at Valavanoor, the plaintiff took forcible possession of the suit property.

(iii) Balasubramania Chettiar''s brother is Ramasamy Chettiar, whose wife is the sister of the first defendant. Due to misunderstanding, Balasubramania Chettiar and first defendant were living separately. The Will is a forged one. The said Balasubramania Chettiar is having two brothers namely, Gnanasambandam and Ramasami Chettiar and they are having number of children. So there is no necessity for him to execute the Will in favour of the plaintiff. After attending the funeral, the first defendant went away locking the house and the plaintiff broke open the lock and tried to take possession of the suit property. The suit is barred by the provisions of Order II Rule 2 of C.P.C. Therefore, the defendants prayed for dismissal of the suit."

The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W. 1 to P.W. 3, D.W. 1 and Exs. A1 to A6 and Exs. B1 to B5, dismissed the suit. Aggrieved against the judgment and decree passed by the trial court, the plaintiff preferred an appeal in A.S. No. 64 of 2001 on the file of the Principal District Court, Tiruvannamalai.

The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal preferred by the plaintiff. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the appellants/defendants.

At the time of admission, the following substantial question of law has been framed:

"1. Whether the learned Principal District Judge is right in holding that the Will was duly executed and attested as per the provisions of the Act when the suspicious circumstances clearly go to show that the Will has been fabricated to defeat the claim of the first defendant?

Whether the present suit is not barred in view of the provisions contained under Order 2 Rule 2 CPC and Order 9 Rule 9 CPC in view of the dismissal of the earlier suit in O.S. No. 283 of 1994 and O.S. No. 633 of 1994 on the file of the District Munsif Court, Tiruvannamalai?"

Challenging the findings of the first appellate Court, learned counsel for the defendants/appellants submits that the first appellate Court has failed to consider that the propounder was not proved the Will and he was not dispelled the suspicious circumstances. He further submits that the suit is barred by the provisions of Order II Rule 2 of C.P.C. and Order IX Rule 9 C.P.C. The plaintiff/respondent has already filed a suit in O.S. No. 283 of 1994 for bare injunction against the first defendant and also another suit in O.S. No. 633 of 1994 for injunction restraining the defendants 1 to 3 therein not to encumber or alienate the suit property and both the suits were dismissed for default on 19.02.1996. Thereafter only, the present suit has been filed. Hence, the suit is hit by the provisions of Order IX Rule 9 C.P.C. and Order II Rule 2 C.P.C., because the plaintiff has not filed the suits for declaration of title. To substantiate his arguments, he relied upon the following decisions:

"(i) Periambal Chettiar Vs. Sundarammal, AIR 1945 Mad 198 : (1945) ILR (Mad) 586 : (1945) 58 LW 22 : (1945) 1 MLJ 58 ;

(ii) Suguna Bai Vs. Muniammal @ Dhanalakshmi and Others, (1996) 2 MLJ 596 ;

(iii) Ram Piari Vs. Bhagwant and others, AIR 1990 SC 1742 : (1990) 1 JT 420 : (1990) 97 PLR 639 : (1990) 1 SCALE 427 : (1990) 3 SCC 364 : (1990) 1 SCR 813 : (1990) 2 UJ 71 ;

(iv) Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd., (2012) 5 CTC 359 : (2012) 8 JT 600 : (2013) 169 PLR 163 : (2012) 4 RCR(Civil) 372 : (2012) 8 SCALE 565 : (2013) 1 SCC 625 ;

(v) Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, AIR 1965 SC 295 : (1964) 6 SCR 192 ;

(vi) G. Alagarsamy Vs. R. Seenivasan, (2012) 2 CTC 543 : (2012) 2 LW 5 ;

(vii) Ranjith Ammal Vs. Sivasubramanian, (2010) 3 LW 184 ;

(viii) GEB Vs. Saurashtra Chemicals, AIR 2004 Guj 83 : (2004) 66 GLH 24 : (2004) 24 GLH 66 ;"

Resisting the same, learned counsel for the respondent/plaintiff submits that Ex. A3/Will has been proved by way of examining P.W. 2 and P.W. 3 who are attestors of the Will. The Will has been executed by Balasubramania Chettiar in favour of the plaintiff/respondent on 28.12.1990 and Balasubramania Chettiar died on 29.01.1994 after three years. So the plaintiff/respondent is in possession and enjoyment of the suit property. Hence, he prayed for dismissal of the second appeal. To substantiate his arguments, he relied upon the following decision:

"(i) Sridevi and Others Vs. Jayaraja Shetty and Others, AIR 2005 SC 780 : (2005) 99 CLT 487 : (2005) 1 CTC 443 : (2005) 1 JT 547 : (2006) 142 PLR 846 : (2005) 2 SCC 784 : (2005) 2 SCR 862 : (2005) 2 UJ 1157 : (2005) AIRSCW 605 : (2005) 1 Supreme 684 ;

(ii) S.P. Thirunavukkarasu Vs. S.P. Loganathan and another, AIR 1992 Mad 328 : (1992) 2 LW 520 ;

(iii) Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, AIR 1982 SC 133 : (1981) 3 SCALE 1766 : (1982) 1 SCC 20 : (1982) 1 SCR 1188 : (1982) 14 UJ 7 ;

(iv) Ramchandra Rambux Vs. Champabai and Others, AIR 1965 SC 354 : (1964) 6 SCR 814 ;

(v) Valliammal and Others Vs. Palaniammal (deceased) and Another, (1998) 2 MLJ 127 ;"

Learned counsel for the plaintiff/respondent further submits that the suit is not hit by Order II Rule 2 C.P.C. To substantiate his arguments, he relied upon the following decision:

"(i) Deva Ram and Another Vs. Ishwar Chand and Another, AIR 1996 SC 378 : AIR 1995 SC 378 : (1995) 7 JT 641 : (1995) 6 SCALE 18 : (1995) 6 SCC 733 : (1995) 4 SCR 369 Supp ;

(ii) Kewal Singh Vs. Smt. Lajwanti, AIR 1980 SC 161 : (1980) 1 SCC 290 : (1980) 1 SCR 854 ;

(iii) S. Ganesan Vs. S. Issac (deceased), M.S. Devadasan, J. Jebamani, R. Ebanesar, R. Selvaraj, I. Prema, I. Violet Jebamani, Mallika, I. Jayaseelan and I. Jesudoss, AIR 2003 Mad 208 : (2002) 3 MLJ 471 ;

(iv) Chinnappa Vs. Corporation of the City of Bangalore, AIR 2005 Kar 70 : (2005) 1 KarLJ 56 : (2005) 1 KCCR 82

(v) Josey Francis Vs. Sunoj K. Balan, AIR 2009 Ker 188 : (2009) 3 ILR (Ker) 343 : (2009) 2 KLJ 784 : (2009) 3 KLT 240 ;"

Considered the rival submissions made on both sides and perused the materials available on record.

The admitted facts of the case are as follows:

"Originally, the suit property belonged to one Arumuga Chettiar, who had three sons namely, Gnanasambandam chettiar, Ramasamy Chettiar and Balasubramania Chettiar and they got their shares vide partition deed under Ex. B3. As per Ex. B3, C schedule property was allotted to Balasubramania Chettiar. The respondent/plaintiff is the son of Gnanasambandam chettiar. The first defendant and wife of Ramasamy chettiar are own sisters. The first defendant is the wife of Balasubramania chettiar and she left the matrimonial home and filed O.S. No. 412 of 1962 for maintenance and that suit was decreed on 31.08.1962. Thereafter, she filed E.P. No. 402 of 1988 for claiming maintenance amount from 11.10.1975 to 11.10.1987, in which, the plaintiff/respondent filed an application under Ex. A2 to deposit the amount by him as third party and that was allowed on 24.01.1990. So Balasubramania Chettiar, who is the testator, lived along with the respondent/plaintiff."

Substantial question of law No. 1:

"Whether the learned Principal District Judge is right in holding that the Will was duly executed and attested as per the provisions of the Act when the suspicious circumstances clearly go to show that the Will has been fabricated to defeat the claim of the first defendant?"

It is the case of the respondent/plaintiff that Balasubramania chettiar has bequeathed the property to the respondent/plaintiff by executing Ex. A3 Will on 28.12.1990 and the testator Balasubramania chettiar died on 29.01.1994. His death certificate was marked as Ex. A4. On that date itself, the plaintiff/respondent is in possession and enjoyment of the suit property as a legatee.

The case of the defendants/appellants is that the first defendant left the matrimonial home and she is the legal heir of the said Balasubramania chettiar. So the first defendant is entitled to the suit property and that she disputed the genuineness of the Will. The second defendant/second appellant herein is the adopted son of the first defendant.

It is well settled principle of law that propounder of Will ought to have proved the genuineness of the Will and also dispelled the suspicious circumstances surrounding the Will.

At this juncture, it is appropriate to consider the following decision relied upon by the learned counsel for the appellants/defendants:

"(i) In Mohammad Khalil Khan and Others vs. Mahbub Ali Mian andAIR 1949 78 (Privy Council) is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. II R.2 of the Civil Procedure Code observed:

"In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance - not technically - identical" "

(ii) In G. Alagarsamy Vs. R. Seenivasan, (2012) 2 CTC 543 : (2012) 2 LW 5 , it was held that whether bar created under Order 9, Rule 9 of C.P.C. would also be applicable to assignee or a transferee of plaintiff who instituted earlier suit and dismissed for default. Bar under Order 9, Rule 9 can be invoked against legal representative or assignees or transferees of plaintiff, who filed earlier suit. It is appropriate to incorporate para-16, which runs as follows:

"16. The decree passed in Original Suit No. 384 of 1995 has been marked as Ex. B10. Admittedly Original Suit No. 384 of 1995 has been instituted for identical relief by the predecessor in title of the plaintiff against the present defendant and other and the same has been dismissed for default. At this stage, a nice legal question arises "as to whether the bar created under Order 9, Rule 9 of the Code of Civil Procedure, 1908 would also be applicable to assignee or transferee of plaintiff who instituted earlier suit and dismissed for default."

But the above decision is not applicable to the facts of the present case, because the plaintiff/respondent herein alone has filed a suit in O.S. No. 283 of 1994 for injunction restraining the defendants from interfering with the plaintiff''s possession and enjoyment and filed another suit in O.S. No. 633 of 1994 for injunction restraining the defendants not to encumber or alienate the suit property and the same were dismissed for default as per Exs. B1 and B2. But the present suit is filed for declaration of title and injunction, which is a comprehensive suit.

(iii)In Ranjith Ammal Vs. Sivasubramanian, (2010) 3 LW 184 , it was held that the plaintiff filed the previous suit against the same defendant on same set of facts and it was dismissed under Order 9 Rule 8 C.P.C., the present suit on same cause of action is not maintainable. Para-16 to 20 are extracted hereunder:

"16. The learned counsel appearing for the appellant/defendant has befittingly drawn the attention of this court to the decision of the Hon''ble Apex Court in Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, AIR 1965 SC 295 : (1964) 6 SCR 192 , wherein the Hon''ble Apex Court has held as follows:

"Beyond the absence in Order 9, Rule 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant the argument, that Rule 9, which speaks of the plaintiff being precluded from bringing a fresh suit creates merely a personal bar against the plaintiff in the first suit. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his right to that property and confer on the transferee a right which he was precluded by law from asserting. The word plaintiff in the rule should therefore in order that the bar may be effective include his assigns and legal representatives".

From the close perusal of the decision mentioned supra, it is needless to say that Order 9, Rule 9 of the Code of Civil Procedure, 1908 can also be invoked against the legal representatives or assignees of the plaintiff, who filed earlier suit.

In the instant case, the present plaintiff has claimed title to the suit property only through the plaintiff found in Original Suit No. 16 of 1983. Therefore, as per the dictum passed by the Hon''ble Apex Court in Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, AIR 1965 SC 295 : (1964) 6 SCR 192 , it is needless to say that the entire arguments advanced by the learned counsel appearing for the respondent/plaintiff is not legally tenable.

It has already been stated in many places that the present suit is clearly barred under Order 9, Rule 9 of the Code of Civil Procedure, 1908 in view of the dismissal of the suit filed in Original Suit No. 16 of 1983 under Order 9, Rule 8 of the said Code. Therefore the first substantial question of law formulated in the present Second Appeal is decided in favour of the appellant/defendant. Since the first substantial question of law is decided in favour of the appellant/defendant, the second substantial question of law formulated in the present appeal need not be decided.

The trial Court after considering the legal point involved in the present suit has rightly dismissed the suit. But the first appellate Court has erroneously come to a conclusion that the present suit is not barred under Order 9, Rule 9 of the Code of Civil Procedure, 1908 in view of the dismissal of the suit filed in Original Suit No. 16 of 1983 under Order 9, Rule 8 of the said Code. In view of the foregoing enunciation of both the factual and legal aspects, the conclusion arrived at by the first appellate court is erroneous and the same is liable to be set aside."

The above decision is not applicable to the facts of the present case, because the suit in O.S. No. 16 of 1983 is filed for declaration of title and injunction and the same was dismissed for default. At this juncture, it is appropriate to incorporate Order 9, Rule 8 C.P.C., which runs as follows:

"8. Procedure where defendant only appears-- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."

In the case on hand, as per Ex. B4, the suit in O.S. No. 283 of 1994 is filed for permanent injunction restraining the defendants not to interfere with the plaintiff''s peaceful possession and enjoyment of the suit property. As per Ex. B5, the suit in O.S. No. 633 of 1994 was filed for injunction restraining the defendants not to encumber or alienate the suit property and the present suit is for declaration of title and injunction. In such circumstances, the above decision is not applicable to the facts of the present case.

(iv)In GEB Vs. Saurashtra Chemicals, AIR 2004 Guj 83 : (2004) 66 GLH 24 : (2004) 24 GLH 66 , wherein it was held that the suit was dismissed for default under Order 9, Rule 8 C.P.C. and no attempt has been made to get the suit restore. Fresh suit on same cause of action is barred under Order IX Rule 9 C.P.C. and it was not barred by res-judicata, but it is barred by Order II Rule 2 of C.P.C. Para-5 and 6 are extracted hereunder:

"5.....It is true that this rule is not really a matter of substance, but it simply deprives the plaintiff claiming his remedy and does not vest any right in favour of the defendant, but in absence of permission, defendant can positively make a grievance that he has been wrongly vexed again for the same alleged wrong. Again the phraseology used in sub-rule (3) of Rule-2 of Order 2 of CPC creates implied bar. Undisputedly, the plaintiff company even its say is accepted as it is, was entitled to more than one relief including declaration and other consequential reliefs on the day on which the first suit was filed and it was entitled to sue the defendant Board for all or any of such reliefs. Some commission in praying such reliefs even inadvertently, would go to the root of the 2nd suit if the same is filed on one or the same cause of action. It is not the say of the plaintiff that proper permission of the Court was obtained when earlier first suit was filed. For any of the reliefs which have been now claimed in the present suit, the effect may be either of commission or of relinquishment of part or of total claim, but the effect would be the same. According to us, finding recorded by the lower Court is incorrect that the 2nd suit is based on a distinct and/or separate cause of action. It is settled that when the plaintiff in a suit based on accounts, omits some item, he cannot sue again in respect of the item so omitted. It is likely that several transactions may have given rise to one cause of action or there may be more than one cause of action based on the same transaction from one single account, but even where there are different contracts or entries in the account, yet if they form full or part of one transaction, breach of all such contracts or improper entries of accounts, should be construed as only one cause of action so far as the scheme of O.2 R.2 of CPC is concerned. It is not the case that on the date of filing of the first suit, the plaintiff was not aware about the actual amount which he could have claimed as amount erroneously or illegally recovered by the defendant Board. In the first suit, the substantial claim was against the defendant Board and not against the State of Gujarat....."

The plea raised by the defendant Board that the 2nd suit is even otherwise time-barred also needs consideration. As per the facts mentioned, while dealing with the findings recorded by the learned Lower Court in reference to Issue Nos. 9-A and 9-B and 5, it is clear that without prejudice to the contentions raised by the defendant Board and for the sake of arguments if it is accepted that the removal of the 2nd meter on 22.1.1987 is an additional factor, then also the receipt of 1st bill on the strength of placement of 3rd meter, could be the latest date for the purpose of deciding the issue of limitation i.e. issue No. 5, because the 2nd meter has been removed undisputedly on 12-1-1987 and the present suit has been filed on 30.1.1991. It is not on record that when first bill was received by the plaintiff company after removal of the 2nd meter. Learned Lower Court, while dealing with the issue of limitation, has accepted the say of the plaintiff that the suit is based on accounts and as excess amount has been recovered by the defendant Board from the plaintiff and amount required to be shown as credit, has not been shown, the question of limitation does not arise. The learned Lower Court has erroneously held that the suit of the plaintiff is within time as the same is based on accounts which is continuous one. It is not correct to say that recovery made by adjusting the amount on 1.5.1983 has any relation with the act of removal of 2nd meter in the month of January 1987. So, on this sole ground of limitation, learned Lower Court ought to have dismissed the claim of the plaintiff treating it to be time-barred."

Learned counsel for the plaintiff/respondent has relied upon the following decision:

"(i) In Deva Ram and Another Vs. Ishwar Chand and Another, AIR 1996 SC 378 : AIR 1995 SC 378 : (1995) 7 JT 641 : (1995) 6 SCALE 18 : (1995) 6 SCC 733 : (1995) 4 SCR 369 Supp , it was held that the suit for recovery of price money of the suit land was dismissed. Subsequent suit by the plaintiffs for recovery of possession on ground that they were owners of land, distinctive cause of action in subsequent suit is not barred under Order II Rule 2 C.P.C. It is appropriate to extract para-23, which reads as follows:

"23. In the previous suit, which was instituted by the respondents, an issue, namely, Issue No. 5 was framed on the status of the appellant as to whether they were the tenants of the land in suit under the respondents but in the subsequent suit this issue was not raised as the appellant who were the defendants in the subsequent suits did not plead that they were the tenants under the respondents. What they pleaded was that they were in possession since a long time namely from Samvat 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit, is between the same parties who had litigated in the previous suit and it is also true that the subject matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different. Consequently, the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the learned counsel for the appellants to invoke the rule of res judicata on the ground that in the earlier suit it was found by trial court that the appellants were the tenants of the land in dispute under the respondents."

(ii) In Kewal Singh Vs. Smt. Lajwanti, AIR 1980 SC 161 : (1980) 1 SCC 290 : (1980) 1 SCR 854 , it was held that amendment seeking revival of cause of action under Section 14(1)(e) was not barred by Order 2, Rule 2 C.P.C. But this decision is not applicable to the facts of the present case. Because the land lady basing her suit claims on three distinct causes of action (i.e.) under Sections 14A(1) and 14(1)(e) and (f). Subsequently, land lady by amendment seeking to revive cause of action. So it was not hit by Order 2 Rule 2 C.P.C. and question of constructive res-judicata did not arise. So the above decision is not applicable to the facts of the present case.

(iii)In S. Ganesan Vs. S. Issac (deceased), M.S. Devadasan, J. Jebamani, R. Ebanesar, R. Selvaraj, I. Prema, I. Violet Jebamani, Mallika, I. Jayaseelan and I. Jesudoss, AIR 2003 Mad 208 : (2002) 3 MLJ 471 , it was held as follows:

"In order that a plea of the bar under Order 2, Rule 2(3), C.P.C. should succeed, the defendant who raised the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed; (4) that the cause of action and the parties to the second suit shall be the same as in the first suit. "

(iv) In Chinnappa Vs. Corporation of the City of Bangalore, AIR 2005 Kar 70 : (2005) 1 KarLJ 56 : (2005) 1 KCCR 82 , wherein it was held that the suit has been filed for declaration of title and injunction. But earlier suit was filed only for injunction. Question of plaintiff''s title was not in issue in earlier suit. So it is not hit by Order 2 Rule 2 of C.P.C. Para-10 is extracted hereunder:

"10. The plaintiff has produced Ex. P. 2 the sale deed obtained by his father. There is no contra evidence to show that the vendor of Ex. P. 2 had no title over the property at the time of sale. The fact that plaintiff had failed to prove possession in 1982 does not mean that he is precluded from proving possession in the present suit and more so the possession of the plaintiff is specifically admitted by the defendant. In that view of the matter, the judgment and decree of the Trial Court is bad in law. The appeal is allowed with costs. The judgment and decree of the Trial Court is set aside. The suit of the plaintiff is decreed."

(v) In Josey Francis Vs. Sunoj K. Balan, AIR 2009 Ker 188 : (2009) 3 ILR (Ker) 343 : (2009) 2 KLJ 784 : (2009) 3 KLT 240 , it was held that in earlier suit for perpetual injunction apprehension that defendant would alienate suit property to somebody else, gave rise to cause of action. Whereas cause of action in latter suit of specific performance was default of defendant to perform his part as agreed. Suit based on separate and distinct cause of action, is not attracted by Order 2 Rule 2 C.P.C."

On perusal of cause of action given in the suits under Exs. B4 and B5, it reveals that the plaintiff/respondent got the suit property by way of Ex. A3 Will executed by Balasubramania chettiar on 28.12.1990 and he died on 29.01.1994. As per Ex. B4, in para-9 of the plaint in O.S. No. 283 of 1994, it was stated that the first defendant and her men are influential persons and threatened the plaintiff that they would dispossess the plaintiff from the suit property. Hence, the plaintiff filed the suit for bare injunction restraining the defendants not to interfere with the plaintiff''s peaceful possession and enjoyment of the suit property. In Ex. B5/suit in O.S. No. 633 of 1994, it was stated that the defendants 1 and 2 attempted to create encumbrance over the suit properties and hence, the plaintiff filed the suit for injunction restraining the defendants not to encumber or alienate the suit property.

On perusal of the present suit in O.S. No. 37 of 1996, it reveals that the suit was filed for declaring the plaintiff''s absolute title and interest over the suit property and granting permanent injunction restraining the defendants and her men from interfering with the plaintiff''s peaceful possession and enjoyment of the suit property. In such circumstances, I am of the view, the present suit is not hit by Order II, Rule 2 C.P.C. and Order IX, Rule 9 C.P.C. The first appellate Court has rightly held that the suit filed by the plaintiff/respondent is not barred by the provisions of Order II, Rule 2 and Order IX, Rule 9 C.P.C. Thus, substantial question of law No. 2 is also answered against the defendants/appellants.

Considering the facts and circumstances of the case along with the above decision, I am of the considered opinion, Ex. A3 Will is true and genuine, on that basis, the plaintiff/respondent as a legatee entitled to the suit property and he is in possession and enjoyment of the suit property. Furthermore, the suit filed by the plaintiff/respondent is not barred by the provisions of Order II, Rule 2 and Order IX, Rule 9 C.P.C. The first appellate Court has considered all the aspects in proper perspective and rightly came to the conclusion. Hence, the judgment and decree passed by the first appellate Court does not suffer any illegality or irregularity and it does not warrant any interference and they are hereby confirmed.

In fine,

"� Second Appeal is dismissed.

� The decree and judgment passed by the first appellate Court are hereby confirmed.

� There is no order as to costs.

� Consequently, connected Miscellaneous Petition is closed."