- (1.) THE First Respondent (since died) and the Second Respondent are the Plaintiffs in O.S.No.282 of 1975 on the file of the learned Subordinate Judge, Erode. THE Appellants 1 to 3 (all the three since died) were the Defendants 1 to 3 in the Suit. THE Respondents 3 & 4 herein are the Defendants 4 & 5 in the Suit. THE said Suit was filed for partition and for separate possession of the 1/3 share of the plaintiffs and also for grant of mesne profits. THE Suit was decreed as prayed for by the learned Trial Judge. As against the same, the Defendants 1 to 3 (Appellants 1 to 3 herein) filed an Appeal in A.S.No.16 of 1981 before the learned District Judge of Periyar District at Erode (erstwhile Periyar District and presently the Erode District). THE Appeal was partly allowed thereby confirming the decree and judgment of the Trial Court in respect of partition, but modified the decree in respect of mesne profits by reducing the same from Rs.7,500 to Rs.5,250/-. As against the same, the Defendants 1 to 3 have come up with the present Second Appeal. During the pendency of this Second Appeal, Appellants 2 & 3 died and in whose place, the Appellants 4 to 7 were brought on record as their legal representatives. THE First Appellant also died (a Memo was filed by the learned Counsel for the Appellants to that effect) and the Appellants 5 to 9 have been recorded as his L.Rs. THE First Respondent also died during the pendency of this Appeal in whose place the Respondents 5 to 9 have been brought on record as his legal representatives. THE Respondents 2 & 3 despite service of notice have not appeared before this Court.
(2.) THIS Second Appeal was originally heard by a learned Single Judge of this Court and the Appeal was allowed on 29.11.1991, thereby setting aside the decrees and judgments of both the Courts below. As against the same, a Civil Appeal in C.A.No.430 of 1997 was filed before the Hon"ble Supreme Court and by an order dated 24.7.2003, the Hon'ble Supreme Court set aside the judgment and decree passed by this Court in this Second Appeal and remanded the matter back to this Court for fresh disposal in accordance with law mainly by considering whether any substantial question or questions of law arise for consideration between the parties. That is how, on such remand, this Second Appeal is now before this Court for fresh disposal. As directed by the Hon'ble Supreme Court to find out whether any substantial question of law has arisen between the parties for consideration, when the records were perused it revealed that this Court as early as on 16.2.1982 itself had framed the following substantial questions of law viz.,- "1. Whether the judgments and decrees of the Courts below are vitiated on account of the fact that the defence plea regarding the Suit being barred by res judicata has not been considered and adjudicated upon" 2. Whether the Courts below have committed an error in holding that the Suit is not barred by limitation"" However, the said substantial questions of law were not noticed by this Court while disposing of this Appeal during the previous occasion and so they were not discussed in the judgment. That is the reason why the Hon"ble Supreme Court was pleased to set aside the decree and judgment of this Court. Since this Court has already framed the substantial questions of law, I proceed to dispose of this Second Appeal on the above substantial questions of law. The facts of the case of the Plaintiffs are as follows: (i) There are two items of suit properties comprised in S.Nos.312-A/1 & 312-A/3 situated at Vairamangalam Village in Erode district. They are agricultural lands and the total extent of the suit properties is 7.83 acres. (ii) The suit properties were originally owned by three branches of the decedents of a common ancestor. The Defendants 4 & 5 belong to one branch, one Bomma Naicker and his two sons belong to the second branch and one Nagammal and her minor sons belong to the third branch. (iii) The First Defendant claimed that he had entered into a Sale Agreement to purchase the entire extent of the suit properties under a common Sale Agreement executed by all the three branches. The said agreement was entered into between the parties on 29.8.1966 and it was duly registered. (iv) Mrs. Nagammal and her branch duly executed a Sale Deed in favour of the First Defendant under Ex.A35 on 14.12.1966, in respect of their undivided 1/3 share. (v) Thereafter, the First Defendant herein filed a Suit in O.S.No.250 of 1966 on 15.12.1966, for Specific Performance. During the pendency of the Suit, Bomma Naicker and his branch executed a Sale Deed in favour of the First Defendant herein thereby alienating their 1/3 share under Ex.A34 dated 16.12.1966. Thus, by virtue of these two Sale Deeds, the First Defendant had acquired title for 2/3 undivided share in the suit properties. (vi) In the said Suit in O.S.No.250 of 1966, the 5th Defendant herein was the 2nd Defendant and he was a minor then. He is the son of the 4th Defendant herein. The 4th Defendant herein was the First Defendant in the said Suit. The 4th Defendant resisted the Suit stating that the Sale Agreement was a fraudulent document and he never executed the said agreement along with others on 29.8.1966 as it was alleged in the said Suit. Thus the Suit was hotly contested. (vii) While so, during the pendency of O.S.No.250 of 1966, the 4th Defendant herein for himself and for the 5th Defendant herein as his natural guardian executed a sale deed under Ex.A4 dated 26.12.1966, thereby alienating their 1/3 undivided share in favour of the Plaintiffs herein. Thus, according to the Plaintiffs, they have got undivided 1/3 share in the suit properties. On account of the above Sale Deed (Ex.A4), the Plaintiffs herein were also added as parties to the said Suit. (viii) The said Suit in O.S.No.250 of 1966 was ultimately dismissed by the Trial Court. As against the same, an Appeal was preferred in A.S.No.706 of 1970 before this Court. The Plaintiffs in the present Suit were also added as Respondents in the said Appeal (arrayed as Respondents 9 & 10). (ix) The First Defendant in the present Suit Mr. Marappa Gounder was the sole Appellant in the said Appeal in A.S.No.706 of 1970. When the said Appeal was pending before this Court, the 5th Defendant herein attained majority and he was so declared. Thereafter, under Ex.A2 dated 24.1.1975, the Defendants 4 & 5 again sold away their 1/3 undivided share in favour of the Defendants 2 & 3 herein. Even after the execution of Ex.A2, the Appeal was proceeded with by the parties. (x) Finally on 12.2.1975, a Petition under Order 23, Rule 3, was filed by the Appellant-Mr. Marappa Gounder in A.S.No.706 of 1970 and the Respondents 1 & 2 therein along with a Compromise Memo thereby requesting this Court to record the compromise and to decree the Suit in terms of the Compromise Memo. (xi) But it should be taken note of that the Plaintiffs in the present Suit viz., Chennimalai Gounder and Guruswami who figured as Respondents 9 & 10 in A.S.No.706 of 1970 were not parties to the compromise. As a matter of fact, from the records it can be seen that the Petition to record compromise was stoutly opposed by the Plaintiffs herein viz., the Respondents 9 & 10 in A.S.No.706 of 1970. (xii) Having considered the said Petition filed under Order 23, Rule 3, and the rival contentions, this Court passed a decree as against the Respondents 1 & 2 therein alone. The Appeal was dismissed as not-pressed as against the other Respondents in the Appeal including the Plaintiffs herein who were the Respondents 9 & 10 in the said Appeal. (xiii) Thereafter, the Plaintiff filed the present Suit for partition based on Ex.A4-Sale Deed dated 26.12.1966, under which the undivided 1/3 share of the Defendants 4 & 5 was alienated to the Plaintiffs during the pendency of O.S.No.250 of 1966.
(3.) THE Suit was resisted by the Third Defendant by filing a Written Statement and the same was adopted by the Defendants 1 & 2. THE Defendants 4 & 5 viz., the vendors of the Plaintiffs remained ex parte. According to the Written Statement of the Third Defendant, the sale made under Ex.A4 in favour of the Plaintiffs during the pendency of O.S.No.250 of 1966 suffers from the Doctrine of lis pendens as provided under Section 52 of the Transfer of Property Act and therefore the Plaintiffs cannot claim partition based on Ex.A4. It was also contended that the compromise decree passed as against the Respondents 1 & 2 in A.S.No.706 of 1970 viz., the Defendants 4 & 5 herein binds the alienees viz., the Plaintiffs herein also. THErefore, the Plaintiffs are barred by the Doctrine of res judicata to claim any right or title over the suit properties. It was also further contended that the suit is barred by limitation. Based on the above pleadings, the Trial Court framed appropriate issues. On the side of the Plaintiffs, the First Plaintiff examined himself as P.W.1 and two other witnesses besides marking 35 documents as Exs.A1 to A35. On the side of the Defendants, the First Defendant examined himself as D.W.1 and marked one document as Ex.B1.;