MARAPPA GOUNDER Vs. CHENNIMALAI GOUNDER

JUDGEMENT

(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.

(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.