A co-owner can only deal with their undivided share and cannot claim possession of the entire property post-partition as per established legal principles.

13.Senthilkumar .. Respondents Prayer: Petition filed under Section 115 of Code of Civil Procedure, to set aside the fair and final order dated 13.12.2024 passed in R.W.A.No.6 of 2024 in REP.No.67 of 2005 in O.S.No.74 of 1997 on the file of the learned Subordinate Court, Sankari, Salem District.

For petitioner : Mr.S.Kaithamalai Kumaran For respondents : Mr.A.Saravanan for R1 to R9 R10- Unclaimed R11 – Insufficient address R12 – Deceased R14 0- No appearance

ORDER

Challenging the impugned order dismissing the application filed under Section 47 read with Order 21 Rule 99 of CPC, the present revision has been filed.

2. The petitioner is a third party in the execution petition. The property was originally the subject matter of the partition suit in O.S.No.74 of 1997. The said suit has been filed by Muthu and Arumugam against one Ayyankutti, who is said to the vendor of the revision petitioner. Preliminary decree was passed on 07.10.1999 allotting certain properties to each of the co-owner and final decree was passed on 04.01.2005. The said suit has reached finality. It is the contention of the revision petitioner that he has purchased an extent of 91 cents from one of the co-owner namely Ayyankutti. According to him, the said Ayyankutti has entered into a sale agreement dated 22.01.1997 in respect of 91 cents. Thereafter, for enforcing the sale agreement, the petitioner has filed a suit in O.S.No.177 of

1997 on the file of the District Munsif, Sankari and the same was decreed on 21.02.2023. Based on that decree and the sale agreement in his favour, the revision petitioner resisted the delivery of possession. The learned Trial Judge has rightly rejected the application filed under Section 47 read with Order 21 Rule 99 of CPC.

Hence, the revision.

3. The learned counsel for the revision petitioner submitted that the revision petitioner has purchased an extent of 91 cents on the basis of sale agreement dated 22.01.2997 and for enforcing the abovesaid sale agreement, the suit has been filed in O.S.No.177 of 1997 and the same was decreed in favour of the revision petitioner on 21.02.2023. Thus, the revision petitioner's right is to be protected. In support of his submission, he placed reliance on the order of this Court in the case of Thanupilli vs. V.Lakshmi and others reported in 2018 (2) MWN (Civil) 602.

4. Whereas, the learned counsel for the respondent submitted that the similar application is already filed by the revision petition in E.A.No.13 of 2007, wherein, the Executing Court after detailed discussion dismissed the application and that application has already reached finality, thus, the present application is not maintainable and the order of the Trial Court does not require interference.

Hence, seeks for dismissal of the revision.

5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents 1 to 9 and perused the materials placed on record.

6. The revision petitioner resists the execution proceedings mainly on the basis of sale agreement said to be executed by one of the co-owner and he is possession of the entire extent purchased by him. This Court is of the view that co- owner/vendor is certainly entitled to deal with his share alone not in respect of the entire property. Section 44 of the Transfer of Property Act deals with sale of undivided share by the co-owner. Though, there is no bar for the co-owner to sell the undivided share. The only restriction on the purchaser is that he cannot claim possession, at the most he is entitled to seek for partition, whereas, in this case, the final decree is passed in the partition suit, properties are allotted among the co-

owners and the final decree has also reached finality.

7. It is also relevant to note that in earlier applicati