Decided on December 09,1952

In Re: Ayya Nadar Appellant
STATE Respondents


Ramaswami, J. - (1.) THIS is a Civil Revision Petition which is sought to be filed against the finding given by the learned District Munsif, Koilpatti, on a preliminary issue regarding 'res Judicata' raised in O. S. No. 42 of 1952.
(2.) THE facts necessary for understanding this finding are: The plaintiff Subbiah Nadar and the defendant Ayyah Nadar are brothers. This plaintiff had purchased from his mother Shenpa -gathammal the eastern portion of a land 2 -98 acres in extent and for which the sale deed stood in the name of that Shenbagathammal. The vendee was obstructed from taking possession of the property and therefore he filed O. S. No. 98 of 1949. In that suit the defendant -brother raised the plea that though the sale deed stood in the name of the mother, in reality the property had been purchased with the funds of the Joint family and that the sale deed had been taken 'benami' in the name of the mother and that the plaintiff was not entitled to the eastern half of the property claimed by him as vendee. This suit was dismissed and there was an appeal therefrom in A. S. 127 of 1950 on the file of the Sub -Court, Tuticorin, and therein the findings of the lower Court were confirmed and the appeal was dismissed. The plaintiff has therefore filed this suit for partition and reducing into separate possession of his half share in the aforesaid entire property viz., the eastern and western portions.
(3.) THE contention of the defendant among other, things was that the present suit was barred by the principle of 'res judicata' and that this plaintiff might and ought to have, put forward this claim in the previous suit.;

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