D SARASWATHY Vs. K KRISHNASAMY

JUDGEMENT

(1.) PETITIONERS challenge the order dated 19.01.2007 passed by the Subordinate Judge, Tiruppur in E.A.No.24 of 2007 in E.P.No.29 of 2006 in O.S.No.694 of 1976, dismissing the Petition filed under Section 47 C.P.C.

(2.) THERE had been various rounds of litigation regarding the subject matter. For proper appreciation of the contentious points raised by the parties, we may briefly refer to certain proceedings and relevant facts thereon. The Petitioners and Respondents 2 to 4 are Sons and Daughters of First Respondent " Krishnasamy through his first wife. The First Respondent has got one Son through his second wife " Pannerselvam, who is the Third Petitioner herein. The First Respondent was allotted 1.04 acres in a family partition between him and his brothers. On 07.06.1969, the First Respondent has sold the Suit Property to the Fifth Respondent " Mayankathal. Three Sons of Krishnasamy viz., Respondents 2 to 4 have filed O.S.No.694 of 1976 on the file of Sub-Court, Coimbatore for Partition and separate possession of their 3/4th share, challenging the said Sale Deed executed by their Father as invalid and that it would not bind their 3/4th share. In the said Suit, the First Respondent remained exparte. By the Judgment dated 25.04.1990, the Subordinate Court, Coimbatore has held that the Sale Deed in favour of the Fifth Respondent - Mayankathal is not binding in respect of 3/4th share of Respondents 2 to 4, but it is valid only in respect of the share of the First Respondent i.e. 1/4th share. The Title of Mayankathal in respect of 1/4th share out of 1.04 acres was held to be valid and binding between the parties.

(3.) AFTER the final decree proceedings were over, the First Respondent has started another round of litigation and filed O.S.No.277 of 1996 on the file of District Munsif Court, Tiruppur against the Purchasers from Mayankathal for Declaration of his Title to the Suit Property, alleging that the Sale Deed dated 07.06.1969 effected by him in favour of Mayankathal is a sham and nominal document and he did not convey the property. Stating that he is in possession of the property, the First Respondent also prayed for Permanent Injunction. By the Judgment dated 31.03.2003, O.S.No.277 of 1996 was dismissed interalia on the ground that the Suit is barred by the principles of resjudicata in view of the suit in O.S.No.694 of 1976. Appeal in A.S.No.25 of 2003 filed by the First Respondent was also dismissed on 25.02.2004. The First Respondent filed Second Appeal in S.A.No.195 of 2005 and the said Second Appeal is pending. In the meantime, for taking delivery of the property allotted in the final decree proceedings in O.S.No.694 of 1976, the Purchasers have filed E.P.No.29 of 2006. The Execution Court has ordered delivery of possession. Challenging the same, earlier the First Respondent has filed C.R.P.No.1720 of 2006, which was dismissed by me on 14.12.2006.