Saroja vs Chinnusamy (Dead) By L.Rs And Anr

5. Let us now narrate the facts leading to the filing of this appeal. Suit No.233 of 1989 [for short the former suit] was filed on 19th April, 1989 by Saroja, respondent No. 3 herein and her minor children namely Suganthamani and Ramesh against her husband Kuppusamy and his tenant in the District Munsif Court, Mettur for declaration of title and permanent injunction in respect of the property measuring 0.78.0 hectare situated in S.No. 56/5A, Marakottai Karavalli village, District Salem, in the State of Tamil Nadu (hereinafter referred to as the 'suit property'). The case that was made out by respondent No. 3 and her minor children in the aforesaid suit was that the suit property having a 5 H.P. motor pump set and a tiled house bearing D.No. 3/95 had fallen to the share of respondent No. 3 and her minor son by an oral partition in 1985. While the former suit was pending, Kuppusamy, the defendant in that suit and husband of the respondent No. 3 herein, sold the suit property to Saroja, the appellant herein by a registered sale deed dated 13th June, 1990 for a consideration of Rs. 1,00,000/-. On 9th July, 1990, the Appellant filed a suit being O.S. No. 493/1990 [for short 'the subsequent suit'] in the District Munsif Court, Mettur for declaration of title and permanent injunction alleging inter alia that she was the absolute owner in possession of the suit property which was purchased by her from Kuppusamy by a registered deed of sale dated 13th June, 1990 and that she had been in continuous possession of the suit property from the date of her purchase and the Patta, Chitta and Adangal also stood in her name. Respondent No. 3 filed her written statement denying the material allegations made in the plaint and alleging that the suit property had fallen to her share along with her minor son by an oral partition which, however, was denied by the appellant. On 24th February, 1992, an ex parte decree was passed in the former suit in favour of respondent No. 3 and her minor children. On 10th November, 1993, the subsequent suit filed by the appellant was also decreed. An appeal preferred against this decision by respondent No. 3 was allowed by the First Appellate Court thereby dismissing the suit of the appellant. The High Court in second appeal confirmed the judgment of the First Appellate Court and thereby dismissed the second appeal. It is against this decision of the High Court that this appeal on grant of special leave has been filed.

6. In the suit filed against Kuppusamy by respondent No.3 and others, no appearance was caused by Kuppusamy, although service of notice was effected on him. When the suit filed by respondent No.3 was pending and the suit filed by the appellant was also pending before the District Munsif, Mettur, an application was made at the instance of respondent No. 3 to dispose of both the suits analogously which was opposed by the appellant. The prayer for analogous hearing of the suits was rejected by the Court. When both the suits were proceeding separately, an ex parte decree, as noted herein above, was passed in the former suit filed against Kuppusamy on 24th February, 1992 in which the right, title and interest in respect of the suit property was declared in favour of respondent No. 3 and her minor children. It may be stated herein that no step was taken by the appellant to implead herself in the suit filed by respondent No. 3 and her minor children against Kuppusamy, although the appellant had purchased the suit property from Kuppusamy. It may be further stated that no step was taken by Kuppusamy, the vendor of the appellant or by the appellant to set aside the ex parte decree. That is to say, the ex parte decree passed in the former suit had attained finality.

(Emphasis supplied).

13. For the reasons aforesaid, we do not find any merit in this appeal. The appeal is thus dismissed. There will be no order as to costs.