N M MUTHU GOUNDER DIED Vs. KALIANNA GOUNDER

JUDGEMENT

(1.) THE 1st defendant in O.S. No.11 of 1994 and O.S. No.131 of 1983 is the appellant in this case. He is the 2nd respondent in I.A. No.284 of 1982 in O.S. No. 118 of 1956 on the file of Subordinate Judge, Gobichettipalayam. THE material facts are as necessary for the proper disposal of the revision and appeals are as follows: One Marappa Gounder owned many properties and he died leaving behind four sons namely Muthu Gounder, Kaliyanna Gounder, Chenniappa Gounder and Perumal Gounder alias M.P. Swamy. THEy could not adjust themselves and Chenniappa Gounder filed O.S. No.118 of 1956 on the file of Subordinate Judge, Erode. A preliminary decree for partition was passed whereby Chenniappa Gounder was allotted l/4th share. He filed an application for passing of a final decree in the case. THE commission was issued to file a report and plan. Certain suggestions were made regarding allotment. It is seen that there was no definite finding regarding allotment of plaint schedule property in the suit, even though a suggestion was made by the Commissioner regarding allotment. THE final decree was passed accepting the report and the plan. THEre is an appeal before this Court. A.S. No. 117 of 1971 was the appeal filed by the appellant herein challenging the final decree. Two other appeals are A.S. Nos.40 and 607 of 1970 was also filed by some of the parties. All these appeals are heard together and disposed of. Ex.A-4 is the certified copy of the final judgment passed by this Court.

(2.) IT is the case of the plaintiff in the respective suits which is the subject matter of the appeal herein that pursuant to their final decree, they have taken possession of the land allotted to them which includes the plaint schedule property also. The appellant herein is interfering with their possession and therefore they prayed for a declaration granted in their favour in respect of plaint property and for consequential injunction.

(3.) WHEN this contention was taken, the plaintiffs in the suit filed I.A. No.384 of 1982 in O.S. No. 118 of 1956 to correct or amend the judgment. An application was filed under Secs. 152 and 153 of the Code of Civil Procedure. In that application, they wanted to amend the final judgment by including the plaint properties also towards their share. The amendment application was seriously objected by the appellant herein. One of his contentions was that the trial court has no jurisdiction to amend the judgment when the same has merged in the appellate decree of this Court. The amendment application and two suits filed by the respective brothers were taken up together. The trial court passed a decree in favour of the plaintiffs and the amendment sought for was also allowed. Against the order allowing the amendment, C.R.P.No.2111 of 1985 is filed by the 1st defendant in the suit. He filed appeals before the lower appellate court against the judgment in A.S.Nos.9 and 10 of 1985. The appeals before the lower court was dismissed. The second appeals are filed against the concurrent judgments. The C.R.P. filed against the amendment application was also tagged with the second appeals and were heard together.