suit for specific performance or come forward to get the sale executed in his favour whereas the plaintiff has purchased under Ex. A.1 on 17.11.1988 from the sons of Kalyanarama Iyer for valid consideration. As the defendant was trying to trespass into the suit property, the plaintiff filed suit O.S. No. 352 of 1988 for bare injunction. However, admittedly, pending the suit, the defendant trespassed into the suit property and took possession of the same. Therefore, the plaintiff did not prosecute the suit. Taking advantage of the same, the defendant has taken a stand that the suit is barred by the principles of res judicata. The said contention of the defendant is not sustainable as the earlier suit though between the same parties and with respect to the same property, it was not decided on merits deciding the rights of parties finally. It was only a suit for bare injunction which was given up on account of the trespass by the defendant. So, the substantial issue between the parties, viz., title and possession, could not be decided in that suit. It is to be noted that since the amendment application filed by the plaintiff for including the relief of recovery of possession was dismissed, the plaintiff thought it fit to file a fresh suit on the subsequent cause of action. Therefore, it cannot be stated that the present suit is barred by res judicata.
