The necessity of a comprehensive trial to resolve disputed issues and the importance of following the Supreme Court's direction to conduct the trial.

The respondents / plaintiffs namely Mrs. Alamelu and R.Madhavan have filed a Civil Suit in O.S.No.102 of 2004 on the file of Additional District Court at Salem, against the appellants / defendants herein to pass a preliminary decree for partition making provision for passing final decree and they sought the following relief:

(a) Directing the division of the suit properties into 3 equal shares and allotment of one such divided share of the plaintiffs together;

(b) Appointing a Commissioner for division of the suit properties as per the preliminary Decree;

(c) Allotting one such divided share to the Plaintiffs together and placing them in separate possession of such allotted share to the plaintiffs;

(d) Awarding costs of the suit payable by the Defendants to the Plaintiffs;

The defendants have filed written statements in the said suit and resisted the same and also proved to dismiss the suit since the plaintiff is claiming partition of the schedule mentioned property after forging a Will. The said suit came before hearing on 03.08.2005, on that day, the defendant counsel reported before the trial Court stating that no further instructions from the defendants. The plaintiff had filed a proof affidavit and adduced evidence as PW1 and marked 10 documents. After recording the proof affidavit of PW1 and on perusing the exhibits marked by him the trial Court had granted ex-parte decree in favour of the plaintiffs and relief granted as prayed for in favour of the plaintiffs that is preliminary decree was passed on 03.08.2005.

2. Aggrieved by the said ex-parte decree the defendants had filed a supplementary application in I.A.No.87 of 2005 in O.S.No.102 of 2004 to set aside the ex-parte decree passed on 03.08.2005. In the said application the second respondent namely R.Madhavan had filed a counter statement and refuted the set aside application. Thereafter, the trial Court dismissed the said application stating that the defendants had filed a set aside application after a lapse of 3 years, as such the defendants have not shown any interest.

3. Aggrieved by the said order and decree passed in I.A.No.87 of 2008 in O.S.No.102 of 2004, on the file of Additional District Court at Salem dated 12.12.2008. The highly competent counsel Mr.R.Dasaratha Rao appearing for the appellants submits that the first plaintiff Mrs.Alamelu was not a widow of Venkataraja konar, the status misconceived by the first plaintiff, actually there was no marriage that took place between the first plaintiff and the said Venkataraja konar. Further both of them were lived as husband and wife at Konar Rice Mills. The second plaintiff is the brother of the first plaintiff. The first plaintiff stated that the marriage was solemnized on 22.08.1991 and on that day Venkataraja Konar age was 53 years and the first plaintiff's age was 38 years. It clearly proves that the first plaintiff concocted the story for the purpose of making a wrongful gain through the partition suit. Further, the Venkataraja konar was living along at Door No.79, Cuddalore Main Road, in order to prove the same ration card and voters list are documentary evidence.

4. The very competent counsel had raised a crucial point stating that the mother of the plaintiff had adduced evidence on 22.06.1992 in a Civil Suit in O.S.No.125 of 1998 on the file of the District Munsif Court. After stating that she wanted to marry the first plaintiff herein namely Alamelu to marry one Selvam. As such, there is no possibility that the marriage was solemnized between the first plaintiff and Venkataraja Konar on 22.08.1991, besides several issues have arisen in the said suit. Therefore, a comprehensive trial is necessary. Further, the exparte decree can be set aside at any stage. If the exparte decree is set aside, the plaintiffs will not be prejudiced. The appellants had filed CMA.No.SR88472 of 2011 was dismissed along with M.P.No.1 of 2011 were dismissed by this Court on 05.11.2012, the same was challenged by the ap