MOTTAI GOUNDAN Vs. PSRAMASWAMI AYYANGAR

JUDGEMENT

(1.) The petitioner in this matter is defendant 1 in O.S. No. 216 of 1929 on the file of the District Munsif, Gobichettipalayam. The suit was for a declaration that certain alienations made by defendant 1 are not binding on plaintiff 2 and on her share in the suit properties, on the ground that the suit properties are the separate properties of plaintiff 2's husband. The first issue raised was whether defendant 1 was estopped from denying the title of the plaintiffs to the suit properties and from contending that they are the joint properties by reason of the decree in O.S. No 3 of 1910 on the file of the District Munsif's Court, Tirupur.

(2.) The learned District Munsif first gave a finding in defendant l's favour on this point. Afterwards an application was made to him to review his order which lie did and gave a finding in plaintiff's favour on the point. An appeal was taken to the District Judge who remarked that the suit was still in its trial stage and that the correctness of the finding might be canvassed by the appellant in the appeal against the final judgment. He also remarked that the appeal memorandum did not clearly show that the application for review was in contravention of Order 47, Rule 2 or Rule 4, but he does not discuss Order 47, Rule 1 in this connexion. He dismissed the appeal. Petitioner has put in revision petitions both against the original and against the appellate order. So the preliminary objection taken that where an appeal lies, a revision petition will not be entertained is met by taking up the revision petition against the appellate decision, i.e. Civil Revision Petition No. 1435 of 1931.

(3.) Original Suit No. 3 of 1910 referred to above was filed by the grandsons of one Marappa Goundan, the maternal grandfather of plaintiff 2's husband alleging that certain properties mentioned in the schedules of the present plaint, belonged to the said Marappa Goundan and that they and plaintiff 2's husband being his heirs were entitled to the same. Plaintiff 2's husband and his father, the present defendant 1, were impleaded as defendants in that suit. The present defendant 1 contended that the suit properties were his ancestral properties and that the plaintiffs in that suit had no right to them. The suit was compromised and a razinamah decree passed under which the properties were divided into some shares between the plaintiffs and the defendants in that suit. When the first issue in the present suit was being argued at the time of the first order, it was contended that it was not open to defendant 1 to claim the suit properties as his ancestral properties inasmuch as by the razinamah decree it was in effect held that they were not so. The Court held that it was not possible to deduce from the terms of the razinamah decree that this was the basis of the razinamah decree.