Amendments to final decrees must involve notice to all interested parties; failure to notify renders amendments non-binding.

JUDGMENT :

(R.N. Manjula, J.)

The plaintiffs are the appellants herein. The plaintiffs filed a suit in O.S.No.8975 of 2008 for the relief of permanent injunction against the defendants restraining them from altering the physical features of the suit property. The trial Court had dismissed the said suit. Aggrieved over the same, the plaintiffs preferred a First Appeal in A.S.No.313 of 2012 before the First Appellate Court. However, the First Appellate Court has dismissed the First Appeal and confirmed the judgment of the trial Court. Hence, the plaintiffs have filed the present Second Appeal before this Court.

2. The short facts pleaded by the plaintiffs in the plaint are as under:

The plaintiffs' mother filed a suit in O.S.No.5445 of 1990 for partition and separate possession of 1/5th share in the suit property, in which, a preliminary decree was passed on 27.09.2001. After the preliminary decree was passed, the plaintiffs' mother died. Thereafter, as her legal heirs, the plaintiffs filed an application in I.A.No.2117 of 2003 for final decree and the final decree was passed on 08.01.2004. The plaintiffs filed E.P.No.820 of 2005 for execution of the final decree. In the meantime, it was found that in the execution warrant, the survey number was wrongly mentioned. Hence, the plaintiffs filed an application in I.A.No.15808 of 2006 for substituting the correct survey number. After appointing an Advocate Commissioner and obtained fresh report from him, the final decree orders were passed. However, the Court had re-opened the matter for clarification vide notice dated 17.11.2008. As the suit property is vacant, the defendants are trying to tresspass in the same and trying to put up a construction and hence, the plaintiffs filed the suit in O.S.No.8975 of 2008 before the trial Court.

3. The brief averments in the written statement of the 1st defendant are as under:

The 1st defendant is only a builder engaged in construction of building by the property owners, upon due authorization given by the actual owners. One Mr.V.Murugan was in actual possession of the suit property. The 1st defendant had obtained the legal clearance from the authority for construction and the construction is in half way. The plaintiffs are not in possession of the suit property and hence, the suit may be dismissed.

4. The brief averments in the written statement of the 2nd defendant are as under:

The 2n defendant was engaged for development and for the proposed building to be constructed in the suit property. Since there was misunderstanding between the 2nd defendant and the owner of the property in the initial stage itself, the 2nd defendant had terminated the work subsequently and the owner of the property had engaged some other persons for the construction work. The suit is not maintainable due to non-joinder of owner of the suit property and hence, the same may be dismissed.

5. The brief averments in the written statement of the 3rd defendant are as under:

The 3rd defendant was not aware of the partition suit and final decree proceedings and she is a bonafide purchaser of the suit property. She purchased the suit property for a valuable consideration by virtue of a Sale Deed dated 20.11.1995. Subsequent to the execution of said Sale Deed, she is in possession and enjoyment of the suit property. She obtained Patta on 26.08.2002.

6. On the basis of the above pleadings, the following issues were framed:

“1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. Whether there is no cause of action for this suit?

3. Whether the suit is bad for non-joinder of necessary parties?

4. To what other relief is the plaintiff is entitled for?”

7. Before the trial Court, on the side of the plaintiffs, only one witness was examined viz., P.W.1 and 12 documents were marked viz., Exhibits A1 to A12. On the side of the defendants, two witnesses were examined viz., D.W.1 & D.W.2 and 15 documents were marked viz., Exhibits B1 to B15.

8. At the conclusion of t