The legal principle established is that a suit can be dismissed based on res judicata, non-joinder of necessary party, and partial partition, as determined by the findings in the earlier proceedings and the evidence presented.

JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 16.09.2009 made in A.S.No.58 of 2004 on the file of the First Additional Sub-Court, Erode confirming the judgment and decree dated 18.02.2004 made in O.S.No.114 of 2000 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai.)

(The case has been heard through Video Conferencing)

1. The suit filed for partition dismissed by the trial Court and the same confirmed by the first appellate Court. Against the concurrent finding, the appellant has filed the second appeal.

2. The case of the plaintiff is that, his father Sengoda gounder purchased 1/72 share in the suit property on 03.09.1962 from one Chennimalai gounder and another, purchased another 1/72 share in the suit property from one Chinnappa gounder and another and also purchased 1/72 share in the suit property from one Sellaiya gounder and two others. Thus, out of total extent of 3.46 acres, he became title holder for 3/72 shares. On the death of his father, the plaintiff succeeded to the property and he is in possession and enjoyment of the same.

3. Earlier, Chenniappan the first defendant herein filed a suit in O.S.No.202 of 1997 for permanent injunction in respect of 1.20 acres of land in the suit property. The trial Court granted injunction on 18.11.1998 and allowed the suit. Appeal in A.S.No.64 of 1999 filed by the plaintiff and others was dismissed. Against which, second appeal in S.A.No.99 of 2000 filed by the plaintiff and others and the same was dismissed on 25.08.2008 with an observation that if the defendants so advised, they are at liberty to file a separate suit either for partition or for declaration of title, if they are legally entitled to do so. Before disposal of this second appeal, the present suit in O.S.No.114 of 200 is filed for partition directing to divide the suit properties into 72 equal shares and allot 3 contiguous shares to the plaintiff.

4. The first defendant Chenniappan filed written statement stating that in the earlier proceedings, the Courts have upheld that there was re-survey of the suit property and injunction relief in respect of 1.20 acres, which form part of Old S.F.No.155, R.S.F.No.469/1 has been granted and the matter has been reached finality. The issue of oral partition and re-survey of the subsequent to the partition was subject matter of the earlier suit and therefore, the present suit is barred by principle of res judicata. Old S.F.No.155 and Old S.F.No.142 are two consecutive survey fields. One on the north and another on the south. The plaintiff as well as the defendants have respective shares both the survey fields. The partition of land in S.F.No.155 is bad for partial partition. Further, one of the sharers Arumayammal, wife of Muthusamy is a necessary party to the suit and for non-joinder of necessary party the suit has to be dismissed. After oral partition is taken place more than 30 years ago, separate patta was issued. After the re-survey proceedings, the first defendant is in possession of 0.46.0 hectare in R.S.F.No.469/1. Reading of the oral partition, the parties have exchanged certain plots in old S.F.No.142 and 155. The plaintiff’s vendor has been in possession and enjoyment of a plot in S.F.No.142. While so, without any right or title the vendor of the plaintiff has sold the property in S.F.No.155 contrary to the oral partition which has taken effect.

5. The trial Court framed the following issues:-

1. Whether the plaintiff is entitled to partition by appointment of a Court Commissioner and division of the suit property into 72 equal shares, with reference to good and bad soil and allotment of 3 contiguous shares and separate possession?

2. Whether the plaintiff is entitled to the relief sought for along with the cost of the suit?

3. Whether the suit is barred by res judicata?

4. Whether the suit is bad for non-joinder of the necessary Arymaiyammal, W/o Muthusamy, who has 3/72 sh