P. Murugan vs Vairavel and Others

S. Tamilvanan, J.—The appeal has been preferred against the Judgment and decree dated 22.11.1994 made in I.A. No. 1662 of 1989 in

O.S. No. 587 of 1977 on the file of the principal subordinate Judge, Salem.

The unsuccessful second defendant in the suit is the appellant herein. Admittedly this suit in O.S. No. 587 of 1977 was filed by the first

respondent herein against the appellant and respondents 2 to 5 seeking partition and separate possession of his share in the property, it is not in

dispute that preliminary decree for partition dated 24.7.1979 was also passed by the Court below in terms of compromise arrived at between the

parties. It is also not in dispute that the respondents 2 to 5 are the sisters of the appellant and the first respondent herein.

The interlocutory application in I.A. No. 1328 of 1979, seeking final decree was filed by the first respondent/plaintiff. During the pendency of

the same, it seams that defendants 1 and 7 in the suit died and the appellant filed a petition to recognize him as legal representative, on the strength

of a Will and necessary amendments were also made in the final decree petition, to that effect, claiming larger share, for the appellant. However,

the first respondent/plaintiff allowed the petition to be dismissed for default. Subsequently, I.A. No. 1662 of 1999 came to be filed. During the

pendency of which I.A. No. 902 and 903 of 1992 were also filed for appointment of receiver and to collect rent for the suit properties and also for

rendition of accounts against the first respondent and his wife.

It has been admitted that the first respondent/plaintiff filed a subsequent suit seeking declaration of title and permanent injunction against the

appellant and others, on the ground that there was a partition and separate possession between the parties, outside the Court in 1985 and the same

was reduced into writing by means of kurchit. Interms of which, properties were divided into ''A'', ''B'' and ''C'' Schedules and allotted to the

respective parties: According to the first respondent, after the aforesaid partition and separate possession, outside the Court he was allotted ''A''

Schedule of the property which he had stated as first item in this Suit and that he has been in possession and enjoyment of the properties allotted to

him, like other sharers.

It is the specific case of the first respondent that there was partition and separate possession outside the Court after the preliminary decree for

partition was passed in O.S. No. 587 of 1977, and that the appellant herein and others were parties to the partition and separate possession of the

properties outside the Court that had taken place in the year 1985. In the suit in O.S. No. 775 of 1986, the appellant herein was admittedly shown

as the third defendant. The specific contention raised by the respondent/plaintiff in the suit is that there was partition and separate possession in the

year 1985 out of Court between all the parties including the appellant, by way of kurchit. Accordingly ''A'' Schedule property was allotted to the

first respondent/plaintiff and he is in possession and enjoyment of the said property since 1985. However, the appellant and other defendants

therein were trying to interfere with the possession and enjoyment of the said property and on that ground the first respondent had filed the suit for

declaration and consequential injunction. The suit was decreed exparte as against the appellant, who was the third defendant therein and others.

Subsequently, the appellant herein filed an interlocutory application in I.A. No. 1531 of 1991 under Order IX Rule 13 CPC, to set aside the

exparte decree without filing a petition to condone the delay. As there was no petition filed u/s 5 of the Limitation Act to condone the delay, the

aforesaid petition filed by the appellant herein, to set aside the exparte decree was dismissed. Aggrieved by the said order, the appellant herein,

approached this Court by way of filing revision petition in C.R.P. No. 2750 of 1993 which was also admittedly dismissed for default.

Mr. B.T. Seshadri learned Counsel appearing for the respondents contended that after the dismissal of the aforesaid Civil Revision Petition by

this Court, the exparte decree, obtained by the first respondent, recognizing the partition outside the Court in the year 1985, has reached its finality

Except the appellant herein; other respondents viz., the other sharers have not agitated the decree, passed in favour of the first respondent/plaintiff.

It is contended by the learned Counsel that the subsequent decree passed in O.S. No. 775 of 1986, has superseded the earlier, preliminary decree

for partition, passed by the Court below in O.S. No. 587 of 1977 and therefore, the Court below has rightly dismissed the application filed by the

appellant herein.

Per contra, Mrs. J. Anandavalli learned Counsel for the appellant contended that the alleged kurchit and the subsequent partition and separate

possession outside the Court are not true and that the exparte decree would not supersede the earlier preliminary decree for partition.

It is not in dispute that the appellant, the first respondent and the other respondents hereto were entitled to shares in the suit property and the

Suit in O.S. No. 587 of 1977 was filed only by the first respondent herein and preliminary decree for partition was also passed. It is also an

admitted fact that the first respondent had also filed an application for final decree, pursuant to the preliminary decree, However; the aforesaid

application was allowed to be dismissed by the first respondent and he filed a subsequent Suit in O.S. No. 775 of 1986 stating that there was

partition and separate possession between the parties outside the court in the year 1985, whereby Item No. 1 of the suit property, described as

''A'' Schedule property was allotted to him and that he was in possession and enjoyment of the property from the date of such allotment, like the

other sharers who are in possession and enjoyment of the property allotted to them. Based on the said pleadings, he filed the suit for declaration of

title as well as for consequential permanent Injunction against the appellant herein and others.

The appellant herein and others were parties to the said suit and admittedly that the suit was decreed exparte; As held by the Court below, an

exparte decree is also as good as, any other decree obtained on merits, unless and until the same is set aside , it is binding on the parties to the suit.

In the suit in O.S. No. 587 of 1977, only preliminary decree for partition had been obtained by the first respondent/plaintiff. Though he filed an

application for final decree, subsequently that was allowed to be dismissed on the ground of default. In the suit in G.S. No. 775 of 1986,

admittedly, the appellant and other respondents were parties and the suit relates to the first item of the suit property herein. It is not in dispute that

the Civil Revision Petition filed by the appellant herein was dismissed for default by this Court. As contended by the learned Counsel for the

respondents; after the dismissal of the Civil Revision Petition, the decree passed by the Trial Court, reached its finality. Therefore, I am of the

considered view that the subsequent decree passed in O.S. No. 775 of 1986 has superseded the preliminary decree for partition passed in O.S.

No. 587 of 1977, So far as the claim of the first respondent herein with reference to the suit property in O.S. No. 775 of 1986 is concerned, since

the appellant herein and others were parties to the proceedings. The other respondents have not challenged the decree passed in O.S. No. 775 of

1986. As the appellant herein and the respondents 2 to 5 were parties to the aforesaid proceedings, the decree is binding on them and hence, the

relief sought for by the appellant has been negatived by the Trial Court.

Therefore, I could find no error or infirmity in the impugned Judgment and decree passed by the Court below so as to warrant any interference

of this Court.

In the result, appeal fails and accordingly the same is dismissed. However, there is no order as to costs.