K. PALANISAMY Vs. K. MANICKAM AND OTHERS

JUDGEMENT

(1.) This Civil Revision Petition has been filed to set aside the fair and decretal order dated 31.08.2012 made in I.A.No.1441 of 2011 in O.S.No.36 of 1983 on the file of the I Additional District Munsif, Coimbatore.

(2.) The petitioner is third defendant, first respondent is plaintiff and respondents 2 and 3 are the defendants 1 and 2 in O.S.No.36 of 1983 on the file of the I Additional District Munsif, Coimbatore. The first respondent filed suit for partition claiming 1/12 share in the suit property. A preliminary decree was passed on 02.12.1991, allotting 1/12 share to the first respondent. The first respondent filed I.A.No.1441 of 2011 under Order 26, Rule 13 of C.P.C for passing final decree in terms of the preliminary decree dated 02.12.1991 for the division of the properties into 1/12 equal shares and 1/2 share of his father which was allotted to his father in the preliminary decree by appointing an Advocate Commissioner. According to the first respondent, First Appeal A.S.No.3 of 1992 on the file of the Subordinate Court, Coimbatore, filed by the petitioner challenging the preliminary decree dated 02.12.1991 was dismissed on 31.01.1995. The father of the respondents 1 and 3, who was the first defendant in the suit, died on 04.11.1995. Therefore, the first respondent is entitled to 1/2 share of his father also.

(3.) The petitioner filed counter affidavit and contended that final decree can be passed only as per preliminary decree. The first respondent has not impleaded all the legal heirs of the deceased first defendant and is not entitled to any final decree as prayed for.