Purchasers of undivided shares in a partition suit, who bought the property prior to the suit, are necessary parties in the final decree proceedings and are entitled to work out their remedy.

JUDGMENT

(Prayer in CMSA(MD).No. 37 of 2015 : Civil Miscellaneous Second Appeal filed under Sections 100 and 108 of Civil Procedure Code to set aside the judgment and decree dated 30.09.2008 passed in EA.No.8 of 2007 in EP.No.562 of 1998 in O.S.No.861 of 1996 on the file of the Additional District Munsif, Dindigul and confirmed by the judgment and decree dated 07.04.2015 passed in CMA.No.20 of 2009 on the file of the Additional Subordinate Court, Dindigul.

in CMSA(MD).No.11 of 2023 : Civil Miscellaneous Second Appeal filed under Order 43 Rule 1 read with Section 100 of Civil Procedure Code to set aside the judgment and decree dated 07.04.2015 passed in CMA.No.22 of 2009 by the Additional Subordinate Court, Dindigul confirming the judgment and decree dated 30.09.2008 passed in EA.No.9 of 2007 in EP.No.562 of 1998 in O.S.No.861 of 1996 on the file of the Additional District Munsif, Dindigul.)

Common Judgment:

1. CMSA(MD).No.37 of 2015 has been filed by the plaintiffs/ decree holders in a suit for partition challenging the allowing of an application under Order 21 Rule 90 C.P.C by the trial Court and confirmed by the First Appellate Court.

2. CMSA(MD).No.11 of 2023 has been filed by the 35th defendant in CMA(MD).No.22 of 2009 on the file of the Additional Subordinate Court, Dindigul challenging the allowing of an application under Order 21 Rule 90 C.P.C. The appellant in CMSA(MD).No.11 of 2023 is a purchaser from the decree holder by way of a sale deed dated 11.02.2005.

3. Factual Background:

(i). One Periyammal, Kamalammal and Valliammal as plaintiffs had filed O.S.No.861 of 1996 on the file of the II Additional District Munsif Court, Dindigul for the relief of partition and separate possession of their 2/15th share. The said suit was filed on 09.09.1986. A preliminary decree was passed on 14.11.1996. The plaintiffs had filed an application in I.A.No.60 of 1997 for passing a final decree and a final decree was passed on 14.07.1998. The decree holders had filed E.P.No.562 of 1998 to take delivery of the property as per final decree. According to the decree holders, they have taken delivery of the property.

(ii). The appellant in CMSA(MD).No.11 of 2023 had purchased an extent of 1656 sq.ft. from the decree holders on 11.02.2005. According to her, she had put up construction for a value of Rs.15,00,000/- and she is residing with her family members.

(iii).The legal heirs of one P.M.Krishna had filed E.A.No.8 of 2007 under Order 21 Rule 90 C.P.C to declare that the decree and the delivery order obtained by the plaintiffs in E.P.No.562 of 1998 to be null and void and not binding upon them and for re-delivery of the property. In the said petition, they have contended that Rajaservai who is one of the co-sharers of the property had sold an extent of 4350 sq.ft out of 1.19 ½ acres in T.S.No.1960/4 in favour of one Kanchana on 15.12.1980. The said Kanchana had sold 2750 sq.ft out of 4350 sq.ft to P.M.Krishna on 15.05.1985. Though the suit for partition was filed on 09.09.1986, the said P.M.Krishna was not made as a party either during the preliminary decree proceedings or the final decree proceedings. The suit property being a vacant site, the decree holders claimed that they have taken possession of the property on 12.12.2009. However, no such delivery was taken.

(iv).According to the petitioners in E.A.No.8 of 2007, without impleading the purchasers of undivided share, who had purchased the property prior to the filing of the partition suit, the partition decree and the delivery orders are not maintainable and they sought for re-delivery.

(v). One R.Ramasamy had filed E.A.No.9 of 2007 contending that Rajaservai who is one of the co-sharers had alienated 4350 sq.ft out of 2.39 acres in favour of one Janakiram Naidu on 15.12.1980. The said Janakiram Naidu had executed a registered sale deed in favour of the petitioner namely R.Ramasamy on 13.06.1986. Though the suit for partit