KANDASAMY; MARIAPPAN Vs. KALLIAPPAN; SANGIAMMAL; TIRUMOORTHY; MARIYATHAL; GEEVARATHINAM; VEELUMANI; VISALAKSHI; JAGANATHAM; J SUNDARARAJAN

JUDGEMENT

(1.) The appellants are the plaintiffs. They filed the suit for partition to divide the suit property into four equal shares with reference to good and bad soil by metes and bounds and to allot two such shares to the appellants herein along with costs of the suit, on the ground that when O.S.No.778 of 1987 was filed by the respondents 1 & 3 before the District Munsif Court, Coimbatore seeking partition, the same was decreed on 25.2.1991 granting 1/8th share to each of the plaintiffs therein. Subsequently, when an appeal in A.S.No.84 of 1991 was filed by the respondents 8 & 9, being the subsequent purchasers, before the III Additional Subordinate Court, Coimbatore, the first appellate Court, modifying the decree passed by the trial Court in O.S.No.778 of 1987 dated 25.2.91, granted 1/4th share to the respondents 1 & 3 by its judgment dated 7.1.1992, therefore, as per the judgment and decree passed in A.S.No.84 of 1991 dated 7.1.92, it was the claim of the appellants that they are also entitled to 1/4th share each in the suit property. However, it was the further claim of the appellants that when Second Appeal No.681 of 1992 was filed before this Court challenging the correctness of the judgment passed by the first appellate Court in A.S.No.84 of 1991 dated 7.1.92, without notice to the appellants, the respondents 1 & 3 appeared through their counsel before the second appellate Court and in the said second appeal, the respondents 8 & 9 along with Mr.Palaniappa Mudaliar entered into a compromise deal with the respondents 1 & 3, accordingly, a joint compromise memo was filed and the said second appeal was allowed. As per the said compromise memo filed before this Court, a panchayat muchalika was also filed. Again the appellants were not parties to the said proceedings. As per the said panchayat muchalika, an arbitrator was appointed and he passed an award. On this basis, it was contended before the trial Court that the said compromise effected before this Court cannot be held to be a valid compromise, as the appellants were not aware of anything that had taken place before this Court. Again taking the defence that no notice was served by the arbitrator to these appellants even in the arbitration proceedings, hence, the award passed by the arbitrator and the judgment passed by this Court cannot be binding on them, the trial Court, rejecting the stand taken by the appellants, refused to accept the prayer and finally the suit filed by the appellants was dismissed holding that the appellants have not claimed any right whatsoever in the suit property when the suit in O.S.No.778 of 1987 was pending and subsequently decided by the III Additional District Munsif Court, Coimbatore for partition. Secondly, it was further held that a perusal of the panchayat muchalika, emanated pursuant to the compromise deal entered between the respondents 1 & 3 with the respondents 8 & 9, amply reveals the significant fact that the first appellant had signed as a witness. That apart, in the receipt exchanged between the parties by way of compromise deal for payment of Rs.50,000/- each to the respondents 1 & 3 by the respondents 8 & 9, it clearly proved that the first appellant was one of the attesting witnesses. Aggrieved by the same, an appeal was filed before the first appellate Court, which also, confirming the findings and conclusions reached by the trial Court, dismissed the appeal. Aggrieved by the same, the present second appeal has been brought before this Court.

(2.) Mr.N.Anand Venkatesh, learned counsel for the appellants, urging this Court to admit the second appeal on the ground that the second appeal has raised some important substantial questions of law, contended that where a memo of compromise has been entered into between certain parties to the proceeding and a judgment was passed based on the compromise terminating the entire proceedings, whether such a decree is binding on the parties who were not parties to the memo of compromise. Adding further, he has contended that whether a subsequent suit for partition would be barred by the doctrine of res judicata, when the earlier suit for partition was disposed of on the basis of a compromise memo entered into between certain parties, in which the present appellants were neither parties nor were given notice before the decree was passed based on the compromise. Taking support from the judgment of this Court in the case of Chidambara Padayachi v. Vellaiya Padayachi and others, CDJ,2008 MHC 2911, he has further submitted that although the trial Court and the first appellate Court have held against the appellants that the first appellant was one of the attesting witnesses, as per the judgment of this Court, when the attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness, but that does not involve the witness in any knowledge of the contents of the deed, therefore, it can at the best be used for the purpose of cross examination, but by itself, it will neither create estoppel nor imply consent, the findings of the Courts below are to be interfered with.

(3.) In reply to the above contentions, Mr.K.Doraisami, learned senior counsel for the respondents 8 & 9, drawing the notice of this Court to the findings given by the first appellate Court, submitted that the appellants, who were also arrayed as one of the defendants before the trial Court in O.S.No.778 of 1987 on the file of the III Additional District Munsif Court, Coimbatore for partition, never even bothered to participate in the said proceedings, since both the appellants throughout the entire earlier proceedings remained ex parte. When they did not even contest the suit in O.S.No.778 of 1987, the trial Court rightly held that when the appellants have not even claimed any right in the suit property since 1978 till the date of filing of the suit and moreover when they kept out of the entire suit proceedings by remaining ex parte, they are not entitled to file the suit for partition subsequently, more particularly, when the second appeal filed by the subsequent purchasers/respondents 8 & 9 was allowed by setting aside the judgments and decrees passed by both the trial Court in O.S.No.778 of 1987 and the first appellate Court in A.S.No.84 of 1991. Concluding his arguments, the learned senior counsel for the respondents 8 & 9 submitted that when the first appellant was one of the attesting witnesses to the receipt evidencing the payment of Rs.50,000/- each to the respondents 1 & 3, that only gave way for setting aside the judgments passed by both the Courts below in O.S.No.778 of 1987 dated 25.2.91 and in A.S.No.84 of 1991 dated 7.1.92, in Second Appeal No.681 of 1992 dated 9.7.2002, therefore, no interference is called for.