Point of Law: Civil Law – Suit for partition and separate possession – Share - Since respondents/defendants did not deny the entitlement of 1/4th share of vendor of the first plaintiff, it shows that they did not have any intention to deceive either her vendor or the first plaintiff.

JUDGMENT :-

(Prayer: The Second Appeal filed under Section 100 of C.P.C., against the Judgement and Decree dated 11.01.2010 in A.S.No.87 of 2009 on the file of the II Additional Subordinate Judge, Salem reversing the judgement and decree dated 15.04.2009 in O.S.No.361 of 2008 on the file of the Principal District Munsif Court, Salem.)

1. This Second Appeal has been filed against the Judgement and Decree dated 11.01.2010 passed in A.S.No.87 of 2009 on the file of the II Additional Subordinate Judge, Salem reversing the judgement and decree dated 15.04.2009 passed in O.S.No.361 of 2008 on the file of the Principal District Munsif Court, Salem.

2. The first plaintiff is the mother of the second plaintiff. The suit property was purchased by the first plaintiff by virtue of a registered sale deed dated 12.02.1976 from one Thangavel son of Muthusamy Gounder and his minor sons Boopathy and Saravanan represented through their father and his wife Lakshmiammal. From then onwards, the first plaintiff was enjoying the suit property along with the second plaintiff. The defendants have filed a false suit in O.S.No.178 of 1997 against one Manickkam and others for partition and separate possession in respect of 1/4th share. The defendants were aware that the first plaintiff's vendor (who is 9th defendant in O.S.No.178 of 1997) has sold his 1/4th share in favour of the first plaintiff. Hence on the date of suit the first plaintiff's vendor Thangavel had no right in the suit property. But the defendants have filed the said suit without impleading the first plaintiff as a party.

3. The defendants colluded with the plaintiffs and consequently, got an admission decree for partition passed in O.S.No.178 of 1997 and final decree was also passed according to the choice of the defendants. On the basis of the final decree, the defendants have filed execution proceeding for delivery of the property in the enjoyment of the plaintiffs. At that point only, the plaintiffs came to know about the fraudulent decree got in O.S.No.178 of 1997 by collusion between the defendants and others. After purchasing the suit property from Thangavel, the plaintiffs have made several improvements by spending large amount of money. As against these plaintiffs, the decrees passed in O.S.No.178 of 1997 are null and void. Hence the plaintiffs have filed this suit for declaring both preliminary decree and final decree passed in O.S.No.1843 of 2004 and in I.A.No.528 of 2005 are null and void and also for consequential injunction for restraining the defendants from executing the final decree and restraining them from interfering with the plaintiffs' possession and enjoyment of the suit property.

The written statement:

4. It is false to state that the plaintiffs are in possession and enjoyment of the suit property. It is true that the defendants have filed the suit for partition in O.S.No.178 of 1997 on the file of Sub Court, Salem. Since Thangavel being one of the co-parcener, he was also added as a party to the suit. The preliminary decree, 1/4th share was allotted to Thangavel. The defendant is not aware of any sale affected by Thangavel in favour of the plaintiff. The final decree was passed in pursuance of the preliminary decree and thereafter, the defendants have filed the execution petition. The plaintiffs have colluded with the other legal heirs who were unwilling to give possession to the defendants. The defendants were not able to enjoy the fruits of the decree passed in their favour. There is no separate division or enjoyment and hence the alleged sale deed does not confer any right, title or interest over the property. The suit is misconceived in law and is not maintainable. The vendors of the plaintiffs are necessary parties but they are not included as a party to the suit. Hence the suit is bad for non-joinder of necessary parties. Hence the suit has to be dismissed.

5. On the side of the plaintiffs, two witnesses were examined as P.W.1 & P.W.2 and Exs.A1 to A9 were marked.