IMPORTANT POINT
A claim petition dismissed for default precludes the filing of a separate suit regarding the same property under Order XXI Rule 58(2) of the Civil Procedure Code.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and the decree dated 07.03.2017 in A.S. No. 15 of 2014 on the file of the I Additional Sub Court, Villupuram, confirming the judgment and the decree dated 14.02.2014 in O.S. No. 472 of 2008 on the file of Additional District Munsif's Court, Villupuram.

1. The plaintiff in the suit is the appellant. He filed a suit for declaration of title and permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property. The suit was dismissed by the Trial Court and the first appeal filed by the appellant was also dismissed. Aggrieved by the concurrent findings, the appellant is before this Court.

2. According to the appellant/plaintiff, the suit property was originally allotted to the share of respondents' father Subramaniyan under the Partition Deed dated 05.12.1986 between the said Subramaniyan and respondents/defendants. The said Subramaniyan sold 0.20 cents out of 1 acre 39 cents in Dry Survey No. 4/2 in favour of the appellant/plaintiff under registered Sale Deed dated 09.02.1991 and as such, the appellant/plaintiff has been possession and enjoyment of the same from that date onwards. One Sendamaraikannan filed an execution petition in E.P. No. 465 of 1991 against the said Subramaniyan for attachment of the properties and he said to have caused an attachment on 15.11.1991, which was subsequent to the sale effected in favour of the appellant. Thus, the appellant's Vendor- Subramaniyan had no subsisting interest on the date of alleged attachment. Hence, the appellant filed a claim petition in E.A. No. 905 of 1993 in E.P. No. 465 of 1991 to raise attachment. The appellant was examined on his side and the matter was adjourned for evidence of respondents' therein. The learned counsel, who represented the appellant in claim petition told him that he would intimate the result after disposal of the said petition. However, the result of the claim petition was not informed to the appellant. In these circumstances, the 2nd defendant attempted to commit trespass into the suit property on the ground they had purchased the suit property from his paternal uncle Palani. Thereafter, on enquiry the appellant came to know that claim petition filed by him in E.A. No. 905 of 1993 was dismissed for default. The above said Palani, who was brother of Subramaniyan and junior paternal uncle of defendants said to have been purchased the suit property in court auction sale on 18.06.1998 and said Palani had also taken delivery of the suit property through court. It was further claimed by the appellant that delivery effected in favour of the Palani was only a paper delivery and he had been possession and enjoyment of the suit property. Claiming that the execution proceedings was collusive one and vitiated by fraud, the appellant has filed the present suit seeking above said relief.

3. The respondents herein filed a written statement denying right as well as possession over the suit property. It was averred by the respondents that one Senthamaraikannan filed a suit for recovery of money against the Subramaniyan in O.S. No. 477 of 1988 and obtained a decree. The suit property, which was attached in the proceedings initiated by Senthamaraikannan was brought for sale. The appellant filed claim petition in E.A. No. 905 of 1993 on 16.03.1993. The said petition was taken up for enquiry on 15.11.1993 and appellant was examined as PW-1 on 06.12.1993. Thereafter, the said Subramaniyan died and his legal representatives were brought on record. Subsequently, the appellant filed application to reopen the evidence and recall him. Those applications were allowed and again, the matter was posted for appellant's side evidence on 18.07.1996 and the appellant's side evidence was closed on 08.09.1997. Thereafter, the matter was posted for respondents' side evidence on 17.09.1997. On that date, the ap