1. L. P. A. No. 96 of 1975 is filed against the common judgment of N.S. Ramaswami J. in A. S. 304 and 660 of 1969, which arise out of O. S. No. 99 of 1963, by the defendants 9 to 15, who are the legal representatives of the first defendant. L. P. A. 59 of 1976 is filed by defendants 3, 5 to 8 and the legal representatives of the 4th defendant against the same judgment. The suit O. S. 99 of 1963 was filed by the respondents for setting aside the decree passed in an earlier suit, O. S. 456 of 1950, and for consequential relief of possession in respect of a part of the suit property and injunction in respect of the remaining part.
2. The property involved is a vacant land of an extent of 14-47 acres comprised in three survey Numbers, S. Nos. 755, 756 and 94/4 Thottipalayam village, Palladam taluk, Coimbatore Dist. One Shanmugham Chettiar, who is the 1st defendant in the suit, filed O. S. 456 of 1950 on the file of the subordinate Judge's Court, Coimbatore claiming that he had purchased an extent of 3.68 acres in the three survey numbers from the previous owner. In a suit for general partition, he alleged that he was in joint possession and that his share might be determined and allotted to him. A preliminary decree was passed in O. S. 456 of 1950 in favour of Shanmugham Chettiar for 4/5th share in the entire extent of 14.47 acres, the remaining 1/5th share being allotted to defendants 2 to 4. A final decree followed the preliminary decree. Shanmugham Chettiar was allotted about 11 acres, though in fact he claimed only 3.68 acres. The plaintiffs in the present suit claimed their title through the 6th defendant in O. S. 456 of 1950. In the preliminary decree it was found that the 6th defendant had no right whatsoever in the survey numbers in question and accordingly he was not given any relief.
3. In the plaint in the present suit it was alleged that the decree in O. S. 456 of 1950 was obtained by fraud, that it was passed without jurisdiction and that, therefore, it was liable to be set aside. The plaintiffs also prayed for possession, as the first defendant in this suit had taken possession of the B and C schedule plots, which the plaintiffs have purchased from the previous owner. The learned Judge, who tried the suit, agreed with the contentions of the plaintiffs and set aside the decree in O. S. 456 of 1950 on the ground that it was vitiated by fraud and granted other reliefs prayed for by the plaintiffs. On appeal by the defendants. the learned single Judge found that the plaintiffs have not succeeded in establishing that the decree in O. S. 456 of 1950 was obtained by fraud, but confirmed the judgment and decree of the trial court and set aside the decree in O. S. 456 of 1950 on the ground that the decree in that suit was passed without jurisdiction.
4. The short question that arises in these Letters Patent Appeals is whether the learned Judge was right in setting aside the decree in O. S. 456 of 1950 as having been passed without jurisdiction.
5. Mr. G. Ramaswami, learned counsel appearing for the legal representatives of the 1st defendant, gave us a very long history of the family and traced the title of the various sharers numbering about 32 persons from the year 1875 to 1961. It is not necessary for us to go into the facts and trace the devolution of various shares in the three items of properties from the year 1875, for these appeals can be disposed of on a very short ground.
6. As we have already stated, the only point that arises is whether the decree in O. S. 456 of 1950 can be set aside on the ground that it was passed without jurisdiction. The judgment of N. S. Ramaswami J. out of which these appeals arise, is reported in Karuppammal v. Poosari, : AIR1977Mad302 . The learned Judge correctly stated the law by observing that however erroneous a decree might be, it could not be set aside or treated as a nullity unless it was shown that the same had been obtained by fraud or that the court had no jurisdiction to pass such a decree. The contention that was but forward on behalf of the plaintiffs, which was accepted by the learned Judge, is that the first defendant had conceded in the earlier suit O.S. 456 of 1950 that a half share belonged to Petha Boyan's branch. plaintiff's predecessor-in-title, though he stated that Raju Boyan, cousin of Petha Boyan had conveyed an one-fourth share to Chinna Mara Boyan. The learned Judge found that there could be no doubt whatsoever that at least in respect of an one-fourth share which was conceded to Petha Boyan as per the averments in the plaint in O. S. 456 of 1950, there was no controversy to be decided by the court. The learned Judge proceeded to observe that none of the defendants to that suit had ever contended that Petha Boyan was not entitled to even that one-fourth share conceded in the plaint. In this view, the learned Judge concluded that there was no escape from the position that in respect of one-fourth share, there was no controversy at all and that under such circumstances, the court had no jurisdiction to decide even in respect of the said one-fourth share.
7. This view of the learned Judge cannot be supported. Firstly, the learned judge is in error in the facts. Though the plaintiffs have stated that one-fourth share belongs to Petha Boyan, they have not stated that the predecessor-in-interest of the plaintiffs was entitled to one-fourth share. Secondly, the learned Judge is in error in holding that the defendants had not contended that Petha Boyan was not entitled to even one-fourth share. This is factually incorrect as is seen from the written statement of defendants 8, 9 and 24 to 29. while the 8th defendant contended that Petha Boyan was not entitled to one-fourth share, but far less, defendants 9 and 24 to 29 contended that Petha Boyan had no share at all. In a partition suit, each defendant is in the position of a plaintiff and when contentions as to share are raised, the whole question as to the shares which the different sharers would be entitled to, and the extent will be at issue. Though in the plaintiff in O. S. No. 456 of 1950 the first defendant herein claimed only 3.68 acres, the learned Judge, after considering the claims set up by various defendants, found that the predecessor-in-title of the plaintiff in O. S. 456 of 1950 had a right to a much larger share and at the final decree fixed it at 11.58 acres. It was also found that so far as the predecessors-in-title of the present plaintiffs is concerned, he had no share whatsoever. the learned Judge while holding that the court acted without jurisdiction in passing the decree in O. S. 456 of 1950, took note of the fact that the suit is a partition suit and every defendant who claims a share is in the position of the plaintiff and that, therefore, the plaint averments alone are not the criteria to decide what the controversy was, but fell into the error in holding that the defendants did not dispute the share of the present plaintiffs' predecessor-in-title.
8. In law also, the learned Judge's reasoning and conclusion are unsustainable. Even if a larger share than what was in fact claimed in the plaint in O. S. 456 of 1950 was granted by the court on the ground that some other sharer had no share, it cannot be said that the court acted without jurisdiction. We are also aware of the fact that the claim was not for the right, title and interest of the predecessor-in-title of the plaintiff in O. S. 456 of 1950 but was only for a specific extent. The granting of an excess extent by holding that the plaintiff's predecessor-in-title was entitled to a larger share in the three survey numbers may be erroneous. But it cannot be contended that it is without jurisdiction. The suit being a partition suit, the dispute between the parties is about the share and the extent each one of them is entitled to. if there is an erroneous declaration of the shares or even allotment of a certain extent, the proceedings of the court will not be without jurisdiction. The civil court has ample jurisdiction to decide an issue rightly or wrongly and that would not make the decision without jurisdiction. We are unable to accept the view of the learned Judge that there was no list before the Judge who tried the suit. The learned Judge, who tried O. S. 456 of 1950 regarding the excess extent allotted the same to the plaintiff in that suit. We are, therefore, satisfied that the learned Judge was in error in setting aside the decree in O. S. 456 of 1950 as having been passed without jurisdiction. The present suit is not in the nature of an appeal against the decree in O. S. 456 of 1950. It cannot be set aside except on the ground of fraud or total lack of jurisdiction. For the reasons stated above, we find that it is not possible to say that the judgment and decree in O. S. 456 of 1950, however erroneous it may be, is without jurisdiction. In this view, we allow the two appeals preferred by the defendants, with costs and dismiss the suit. One set in L P. A. No. 59 of 1975 payable by plaintiff 1 to 3.
9. Appeal allowed.