KARUPPAMMAL Vs. T U POOSARI

JUDGEMENT

(1.) L. P. A. No. 96 of 1975 is filed against the common judgment of N. S. Ramaswami J. in A. S. 304 and 660 of 1969, which arise out of O. S. No. 99 of 1963, by the defendants 9 to 15, who are the legal representatives of the first defendant. L. P. A. 59 of 1976 is filed by defendants 3, 5 to 8 and the legal representatives of the 4th defendant against the same judgment. The suit O. S. 99 of 1963 was filed by the respondents for setting aside the decree passed in an earlier suit, O. S. 456 of 1950, and for consequential relief of possession in respect of a part of the suit property and injunction in respect of the remaining part.

(2.) THE property involved is a vacant land of an extent of 14-47 acres comprised in three survey Numbers, S. Nos. 755, 756 and 94/4 Thottipalayam village, palladam taluk, Coimbatore Dist. One Shanmugham Chettiar, who is the 1st defendant in the suit, filed O. S. 456 of 1950 on the file of the subordinate judge's Court, Coimbatore claiming that he had purchased an extent of 3. 68 acres in the three survey numbers from the previous owner. In a suit for general partition, he alleged that he was in joint possession and that his share might be determined and allotted to him. A preliminary decree was passed in O. S. 456 of 1950 in favour of Shanmugham Chettiar for 4/5th share in the entire extent of 14. 47 acres, the remaining 1/5th share being allotted to defendants 2 to 4. A final decree followed the preliminary decree. Shanmugham Chettiar was allotted about 11 acres, though in fact he claimed only 3. 68 acres. The plaintiffs in the present suit claimed their title through the 6th defendant in O. S. 456 of 1950. In the preliminary decree it was found that the 6th defendant had no right whatsoever in the survey numbers in question and accordingly he was not given any relief.

(3.) IN the plaint in the present suit it was alleged that the decree in O. S. 456 of 1950 was obtained by fraud, that it was passed without jurisdiction and that, therefore, it was liable to be set aside. The plaintiffs also prayed for possession, as the first defendant in this suit had taken possession of the B and C schedule plots, which the plaintiffs have purchased from the previous owner. The learned judge, who tried the suit, agreed with the contentions of the plaintiffs and set aside the decree in O. S. 456 of 1950 on the ground that it was vitiated by fraud and granted other reliefs prayed for by the plaintiffs. On appeal by the defendants. the learned single Judge found that the plaintiffs have not succeeded in establishing that the decree in O. S. 456 of 1950 was obtained by fraud, but confirmed the judgment and decree of the trial court and set aside the decree in O. S. 456 of 1950 on the ground that the decree in that suit was passed without jurisdiction.