A subsequent application for partition is maintainable despite prior dismissals, as rights to partition continue unless legally extinguished.

ORDER

The Civil Revision Petition has been filed invoking Article 227 of the Constitution of India seeking orders to strike off the Interlocutory Application in I.A.No.1 of 2019 in I.A.No.403 of 2010 in O.S.No.68 of

1994, on the file of the Subordinate Court, Devakottai.

2. One Sathasivam has filed a suit for partition against Annaporam Ammal and 7 others before the Subordinate Court, Sivagangai and subsequently the suit was transferred to the Subordinate Court, Devakottai and the same was taken on file in O.S.No.68 of 1994. As per the genealogy tree produced by the revision petitioner, it is their case that one Alagu Servai had two wives viz., Kalimuthu Ammal and Annapooram (first defendant), Kalimuthu Ammal had two sons viz., Somasundaram (2^nd defendant) and Chandran @ Ramachandran (3^rd defendant), that the second wife Annapooram had five sons viz., Viswam @ Viswanathan (4^th defendant), Sathasivam (plaintiff), Sethu (5^th defendant), Pandidorai (6^th defendant) and Krishnan (7^th defendant) and that during the pendency of the above proceedings, the plaintiff and some of the defendants had died and their legal representatives were brought on record.

3. The case of the revision petitioners is that the suit in O.S.No.68 of 1994 was decreed in part on 27.10.1994, that a preliminary decree came to be passed in respect of “A” and “B” schedule properties, whereas the suit in respect of “C” schedule property was dismissed, that the legal representatives of the deceased 2^nd defendant who are the respondents 7 to 11 in the present revision have preferred an appeal in A.S.(MD)No.38 of 1995, challenging the judgment and decree passed in O.S.No.68 of 1994 before this Court, mainly challenging the decree in respect of “B” schedule property, that the appeal came to be dismissed on 21.11.2011, that the appellants in the first appeal have filed Special Leave Petition before the Hon'ble Supreme Court of India in S.L.P.No. 12570 of 2012 and the same was also dismissed on 30.04.2012, that they have also filed a review petition in Review Petition (Civil)No.2547 of 2012 and the same came to be dismissed on 09.01.2013 and that therefore, the decree and the judgment passed in O.S.No.68 of 1994 has attained finality. It is their further case that originally the plaintiff has filed a petition under Order 20 Rule 18 C.P.C., for passing of final decree in I.A.No.403 of 2010, that the trial Court has appointed an Advocate Commissioner on 28.02.2012, that the Advocate Commissioner has inspected the properties and filed his report and plan on 19.08.2016 and that the final decree petition in I.A.No.403 of 2010 is still pending for passing of final decree.

4. It is their further case that the first respondent – Pandi @

Alagarsamy has filed an application in I.A.No.432 of 2012 to implead himself as the respondent in the final decree petiton in I.A.No.403 of 2010 and the same was allowed on 09.11.2012, that thereafter, the said Pandi @ Alagarsamy has filed another application in I.A.No.122 of 2013 under Order 20 Rule 18 C.P.C., seeking orders to pass a fresh preliminary decree by modifying the shares and then to pass a final decree, that the said petition in I.A.No.122 of 2013 was dismissed for default on

06.07.2018, that the first respondent without taking any steps for restoring the application in I.A.No.122 of 2013, which was dismissed for default, has filed another application in I.A.No.1 of 2019 under Order 20 Rule 18 C.P.C., seeking to pass preliminary decree and to allot a share to him and thereafter to pass preliminary decree.

5. The revision petitioners, by alleging that the first respondent has suppressed the very filing of the earlier petition in I.A.No.122 of 2013 and the dismissal of the same, has filed the present application in I.A.No. 1 of 2019 for the very same relief, that the intention of the first respondent is to drag on the proceedings for another ten years, that he does not have any right in the property and that too was not canvassed by him in