ORDER

This Civil Revision Petition is filed against the fair and decreetal order dated 15.09.2016 passed in I.A.No.5677 of 2016 in O.S.No.5874 of 2013 on the file of the XII Assistant Judge, City Civil Court, Chennai, thereby dismissing the petition to set aside the ex-parte order.

2. The petitioner is the 6th defendant in the suit filed by the first respondent for partition. The petitioner duly contested the suit and the same was decreed by a Judgment and Decree dated 02.06.2015. In fact, the petitioner also filed an appeal with a condone delay petition. The said condone delay petition was dismissed. Therefore, the decree became final. In pursuant to the first respondent filed a final decree application in I.A.No.5677 of 2016, in which, the Advocate Commissioner was appointed in the suit. In fact, the petitioner has also participated in the Advocate Commissioner's inspection and signed in the minutes of the Inspection Report by the Advocate Commissioner. Having been participating in the Advocate Commissioner's inspection, thereafter, the petitioner come forward to file an application to set aside the ex-parte decree order for final decree dated 02.06.2015.

3. The Court below dismissed the petition for the reason that the petitioner already participated in the Advocate Commissioner's inspection and also signed in the minutes of the Advocate Commissioner inspection report. Further stated that the preliminary decree was passed after the suit was contested by the petitioner herein. In the said preliminary decree, the Court below concluded as follows :-

“12. The disputes between the parties are that the plaintiff challenging the partition deed Ex.A2 stating that the said deed is mere paper and the property has never been split into 2 equal division and it has been under the common and joint enjoyment of all shares. Therefore the plaintiff is entitled to 1/12th share over the property. Whereas the defendants contended that the plaintiff is entitled to 1/6th share alone out of the property allotted to her father Sivaprakasam, through partition deed dt.30.07.1988. Therefore, the plaintiff's right ver the suit property as one of the legal heir of deceased Sivaprakasam have been admitted by the defendant. But they denied the shares alone for which we have to decide whether the partition deed Ex.A2 acted upon or not and if we concludes that Ex.A2 partition deed acted upon between the parties, then the plaintiff is entitled 1/6th share over the suit property allotted to her father through Ex.A2 and if we concludes that Ex.A2 is not acted upon then the plaintiff is entitled 1/12th share over the suit property for which the following oral testimony of the DW1 are more relevant.

”v';fSf;Fk; vd; rpj;jg;ght[f;Fk;

gphptpid gphpj;Jf; bfhs;stpy;iy vd;why; rhpjhd; gj;jp1ug;go vdf;Fk; vd; rpj;jg;ght[f;Fk; ghfk; Vw;gl;lJ vd;why; rhp/ Mdhy; v';fSf;Fs; brhj;jpy; ,d;dpd;dhh;f;F ,d;d gFjp vd;W gphpj;Jf; bfhs;stpy;iy vd;why; rhpjhd; 3 Mtz';fSk; vd; jhj;jh fz;zg;gd;

bgahpy; jhd; Vw;gl;lJ vd;why; rhpjhd;”

13. Therefore it is clear that though there was a partition entered into between plaintiff's father and 6th defendant through Ex.A2 but it had not acted upon and all the revenue records stands in the name of deceased Kannapan as evidenced through Ex.A7 to Ex.A9. Though sufficient opportunities given to the 6th defendant, he neither produced documents nor appear to adduce evidence to strengthen his version as stated in his written statement and no contra evidence submitted by the 6th defendant. Hence the defendants has not established that the partition deed dated 30.07.1988 acted upon subsequent to the execution of partition deed Ex.A2. Therefore, the 6th defendant contention that the plaintiff is entitled 1/6th share over the property over the B Schedule property mentioned in the Ex.A2 are herewith rejected.

14. Considering the discussion supra the plaintiff is established that she is one of the legal heir of deceased Sivaprakasam and partition already made by