N.S. Ramaswami, J.
1. These two appeals arise out of a suit to set aside a decree passed in an earlier suit and consequential relief of possession in respect of part of the suit property and injunction in respect of the remaining part.
2. The property involved in the litigation is a vacant land whose total extent is 14 acres 47 cents and comprised in three Survey Numbers, namely S. No. 755, S. No. 756 and S. No. 94/4 Thottipalayam village, Palladam taluk, Coimbatore district. The land was said to be a waste, but now it has acquired considerable value as house sites. The above said land is described in the A schedule to the plaint, while in Schedules B, G and D, specific portions of the said land are described. There are three plaintiffs in the suit out of whom, plaintiffs 1 and 2 are brothers. They claim title to the portions described in Schedules B and G and they seek to recover possession of those portions from the first defendant in the suit. The third plaintiff claims title to the portion described in D schedule and as he continues to be in possession of the property, he seeks a permanent injunction restraining defendants 2 to 4 to the suit from in any way interfering with the same.
3. O.S. No. 456 of 1950 on the file of the Court of the Subordinate Judge, Goimbatore was a suit for partition and separate possession filed by Shanmugam Chettiar, the first defendant herein, in respect of the abovesaid land. He has purchased a specific plot measuring 3 acres 68 cents in the abovesaid land from the previous owner but he claimed general partition and allotment of the abovesaid extent impleading all the other persons claiming shares in the land. The learned Subordinate Judge who tried O.S. No. 456 of 1950 passed a preliminary decree in favour of Shanmugham Ghettiar (the plaintiff in that suit and the first defendant herein) for 4/5th of the entire extent of 14 acres 47 cents of land, the remaining 1/5th going to defendants 2 to 4 herein. There was a final decree in accordance with the above-said preliminary decree. The plaintiffs in the present suit were not parties to O.S. No. 456 of 1950 but their predecessors in title were. According to the plaintiffs the decree in O.S. No. 456 of 1950 had been obtained by fraud, that the decree had been passed without jurisdiction and that therefore the same is liable to be set aside. As the first defendant, in pursuance of the decree in O.S. No. 456 of 1950 has taken possession of the B and G schedule plots, which plaintiffs 1 and 2 have purchased from the previous owner, they prayed for possession of those plots. As defendants 2 to 4 were trying to interfere with the possession of the plot described in the D schedule to the plaint, claimed by the third plaintiff, injunction is prayed for in respect of the same.
4. The learned Subordinate Judge, Goimbatore who tried the present suit agreed with the contentions of the plaintiffs and has set aside the decree in O.S. No. 456 of 1950 and granted the other reliefs prayed for by the plaintiffs.
5. The second defendant died during the pendency of the suit and his legal representatives have been impleaded as defendants 5 to 8. The first defendant also died during the pendency of the suit and his legal representatives have been impleaded as defendants 9 to 15. A.S. No. 304 of 1959 is by the legal representatives of the first defendant. A. S. No. 660 of 1969 is filed by defendants 3 and 4 along with the legal representatives of the second defendant (defendants 5 to 8.)
6. Though it has been the case of the plaintiffs in the Court below that the decree in O.S. No. 456 of 1950 was a result of fraud played upon the Court, such a case is not pressed before me by the plaintiffs who are respondents in the two appeals. The only contention is that the decree in that suit (O.S. No. 456 of 1950) is one passed without jurisdiction.
7. Before considering the above question I would dispose of the question of limitation raised on behalf of the defendants. If the contention of the plaintiffs that the Court which passed the decree in O.S. No. 456 of 1950 lacks inherent jurisdiction to pass that decree is correct then the decree is void and that need not be set aside. It can just be ignored. In that event, unless the title to the property is lost by adverse possession, the plaintiff would be entitled to the reliefs claimed. It is not the case of the defendants that the plaintiff's title if any had been lost by adverse possession. Therefore, the real question arising in these two appeals is whether the decree in O.S. No. 456 of 1950 is one passed without jurisdiction. The appreciate the controversy, more facts have to be statea.
8. The land in question along with other lands bearing different Survey Numbers originally belonged to a family of Boyans. According to the plaintiffs the entire land (14 acres 47 cents) belonged to one Peria Palani Boyan. The land was said to have been dealt with in the following manner. The said Peria Palani Boyan executed a simple mortgage over a half share of the property and created a usufructuary mortgage in respect of the other half. The simple mortgage was in favour of one Palani Boyan son of Nanjunda Boyan (referred to as N. Palani Boyan). The usufructuary mortgage was in favour of the said N. Palani Boyan and his brothers Sella Boyan and Mara Boyan. These mortgages were of the year 1876. The equity of redemption in the undivided half share, subject matter of the simple mortgage, had been sold to the mortgagee (N. Palani Boyan) himself. The said N. Palani Boyan, had filed a suit in O.S. No. 51 of 1908 on the file of the District Munsif's Court, Tirupur for enforcing the mortgage but that came to be dismissed because of the above sale. Petha Boyan grandson of Peria Palani Boyan, filed O.S. No. 48 of 1908 on the file of the same Court for redemption of the other half which was the subject-matter of the usufructuary mortgage. That suit came to be decreed by the Court on the same day on which O.S. No. 51 of 1908, came to be dismissed. Petha Boyan got possession through Court of the half share which was the subject-matter of the usufructuary mortgage, and later executed another usufructuary mortgage in favour of one Veerammal who is no other than the daughter-in-law of N. Palani Boyan.
9. The abovesaid Petha Boyan executed two sales, one under Exhibit A-81 dated 4th June, 1938 and the other under Exhibit A-82 dated 21st January, 1943 both in favour of his son T.P. Palaniswami. The equity of redemption in a half share in the land (which had been usufructuarily mortgaged to Veerammal) had been conveyed under those two sales. Eventually T.P. Palaniswami redeemed this half-share from Veerammal.
10. N. Palani Boyan, as already said, had two brothers by name Sella Boyan and Mara Boyan. The purchase of half share by N. Palani Boyan is said to be for the benefit of the family consisting of the abovesaid three brothers. Mara Boyan died and therefore N. Palani Boyan and his brother Sella Boyan were said to be entitled to an undivided 1/4th share each in the entire land. N. Palani Boyan had five sons. After the death of N. Palani Boyan, the five sons became entitled to an undivided 1/20th share in the land. One Chinna Mara Boyan purchased the undivided shares of three of the sons of N. Palani Boyan. He also purchased the 1/4th share of Sella Boyan, the brother of N. Palani Boyan. That apart, he had taken a sale from one Raju Boyan who is said to be the paternal cousin of Petha Boyan in respect of an 1/4th share. This is on the basis that the half share which Petha Boyan had usufructuarily mortgaged to Veerammal, belonged not only to him but also to the above said Raju Boyan.
11. Two sons of N. Palani Boyan had sold their shares to Kandappa Goundar, father of defendants 2 to 4 herein. The several sales in favour of Chinna Mara Boyan referred to above and the sales in favour of Kandappa Goundar were all much earlier than the sale by Petha Boyan in favour of his son T.P. Palaniswami.
12. T.P. Palaniswami filed O.S. No. 90 of 1943 on the file of the Court of the District Munsif, Tirupur for partition and separate possession of the land. By that time Kandappa Goundar had died and out of his three sons (who are now defendants 2 to 4) Venkatappa Gounder alone had been impleaded as a defendant. He seems to have represented the family consisting of himself and the two brothers. Of course Chinna Mara Boyan also was a party to that suit. That suit related not only to the land in question (14 acres 47 cents) but also to another Survey Number, namely Survey Number 94/3 with which we are not now concerned. Chinna Mara Boyan who had taken sales from three sons of N. Palani Boyan 1/20th share each) and Sella Boyan, the brother of N. Palani Boyan 1/4th share) and also from one Raju Boyan, the paternal cousin of Petha. Boyan (another 1/4th share) seems to have claimed in O.S. No. 90 of 1943, a 13/20th share in the land, conceding only 1/4th (5/20th share) to T.P. Palaniswami and 2/20th share to the sons of Kandappa Goundar. But the Court held that T.P. Palaniswami was entitled to a half-share (5/10), that Chinna Mara Boyan was entitled only to 4/10th share and Venkatappa Goundan (the second defendant herein) was entitled to an 1/10th share. This is on the basis that Ghinna Mara Boyan did not get any title to any share under the sale executed by Raju Boyan, the paternal cousin of Petha Boyan, as Petha Boyan was full owner of the half share which had been usufmctuarily mortgaged to Veerammal. N. Palani Boyan and his brother Sella Boyan were found to be entitled to the other half and therefore by the sale by Sella Boyan, Chinna Mara Boyan became entitled to an 1/4th share (5/20) and by the sales of three out of the five sons of N. Palani Boyan he became entitled to 3/20th share. That is how the Court held that Ghinna Mara Boyan was entitled to a 4/10th share.
13. After the preliminary decree but before the final decree in that suit, Chinna Mara Boyan sold his undivided 4/10th share to one Sellamuthu Boyan under Exhibit A-4 dated 29th July, 1946. It was this Sellamuthu who got himself impleaded as a party to O.S. No. 90 of 1943 applied for final decree in pursuance of the above said preliminary decree. The final decree was passed on 11th March, 1947 as evidenced by Exhibit A-3.
14. Under the above said final decree, the entire land measuring 14 acres 47 cents had been divided into ten plots marked in the plan as A, B, C, D, E, F, G, H, J and K. The plots marked A, B, C and D which are the four westernmost plots were allotted to Sellamuthu. The next plot marked E was allotted to Venkatappa Goundar and all the five plots marked as F, G, H, J and K came to be allotted to T.P. Palaniswami towards his half share.
15. In the meantime, that is during the pendency of O.S. No. 90 of 1943, one Peria Mara Boyan and one Roya Boyan (along with another) who are brothers of Ghinna Mara Boyan, filed O.S. No. 336 of 1946 on the file of the Court of District Munsif, Tirupur claiming a share in the land in question. This is on the basis that the purchases made by Chinna Mara Boyan were for the benefit of the family consisting of Chinna Mara Boyan and his brothers. There was also another suit, namely O.S. No. 132 of 1947 on the file of the same Court filed by some of the sons of the above said N. Palani Boyan and a grand-son through one of the sons. This again was a suit for partition and the basis of this suit is that by the sales executed by the sons of N. Palani Boyan (two to Kandappa Goundar and three to Chinna Mara Boyan), the share to which the family was entitled had not been exhausted and that some share still remained with the family. These two suits, namely O.S. No. 336 of 1946 and O.S. No. 132 of 1947 along with yet another suit which related to some other lands came to be tried jointly by the Court of the District Munsif Tirupur. By the time the abovesaid siuts came up for trial, the final decree in O.S. No. 90 of 1943 had been passed, but during the pendency of the earlier suit. By the common judgment dated 30th December, 1948, O.S. No. 336 of 1946 was decreed and O.S. No. 132 of 1947 was dismissed. On appeal, the cases had been remitted for a fresh trial
16. Meanwhile, the plaintiffs in O.S. No. 336 of 1946 (Peria Mara Boyan and others) who had claimed joint rights with Chinna Mara Boyan in respect of the purchases made by the latter, giving up that claim took a sale from Sellamuthu Boyan, the purchaser from Chinna Mara Boyan. Exhibit A-6 dated 23rd January 1948, is the sale in favour of Periya Mara Boyan and Roya Boyan (brothers of Chinna Mara Boyan). Three months thereafter that is under Exhibit A-124 dated 23rd August, 1948 the said Peria Mara Boyan and Roya Boyan sold to the first defendant herein what they had purchased under Exhibit A-6. The significant fact to be noted is that the property conveyed under these documents is a specific plot with four boundaries, measuring 3 acres 68 cents. This is out of the westernmost four plots which had been allotted to Sellamuthu in the final decree in O.S. No. 93 of 1943.
17. After the above sale under Exhibit A-124 the first defendant herein got himself impleaded as the fourth plaintiff in O.S. No. 336 of 1946. Ultimately the said suit (O.S. No. 336 of 1946) was withdrawn with permission to file a fresh suit on the same cause of action. It is under that permission, the first defendant herein filed O.S. No. 456 of 1950 on the file of the Court of the Subordinate Judge, Coimbatore. O.S. No. 132 of 1947 on the file of the Court of the District Munsif, Tirupur which was still pending, was transferred to the file of the Court of the Subordinat Judge, Coimbatore and numbered as O.S. No. 418 of 1950 on the file of that Court to be tried with O.S. No. 456 of 1950. The said Court by a common judgment dated 14th September, 1957 dismissed O.S. No. 418 of 1950 and decreed O.S. No. 456 of 1950 declaring that the first defendant herein (plaintiff in that suit) was entitled to a 4/5th share in the entire extent of 14 acres 47 cents and that the remaining 1/5th was to be taken by the sons of the Kandappa Goundar, defendants 2 to 4 herein. As already mentioned, in pursuance of such a preliminary decree in O.S. No. 456 of 1950, a final decree was obtained and the first defendant herein had taken possession of a divided 4/5th share in the entire extent. Defendants 2 to 4 herein had also taken possession of their divided 1 /5th share, except a small extent therein which is in the possession of the present third plaintiff.
18. Plaintiffs 1 and 2 claim title to the plots described in the schedules B and C to the plaint, under two sale deeds, Exhibit A-60 dated 27th August, 1951 and Exhibit A-79 dated 7th July, 1952, executed by T.P. Palaniswami. As already seen under the decree in O.S. No. 90 of 1943, T.P. Palaniswami became entitled to the eastern half share in the entire 14 acres 47 cents. The plots now described in Schedules B and C to the plaint are the said eastern half. But under the subsequent decree that is in O.S. No. 455 of 1950 the Court having granted a 4/5th share in the entire extent of 14 acres 47 cents to, the first defendant herein (even though he had purchased only a specific plot measuring 3 acres 68 cents and claimed in the suit the allotment of only that extent), he had taken possession in pursuance of that decree even the plot purchased by plaintiffs 1 and 2 from T.P. Palaniswami.
19. The third plaintiff claims title only to 10 cents of land and that is through Sellamuthu Boyan. Sellamuthu Boyan who sold 3 acres 68 cents (out of the western 4/10th share which he got under the decree in O.S. No. 90 of 1943) to Peria Mara Boyan and Roya Boyan which ultimately came to the first defendant, herein, executed several other sale deeds all in respect of specific plots. Exhibit A-5 is a sale in respect of an extent of 1 acre in favour of one P.N. Ramaswami and one Senga Goundar. Exhibit A-7 is a sale in respect of a plot measuring 50 cents in favour of one V. Palanisami. Exhibit A-8 is in respect of a plot measuring 41 cents in favour of Senga Goundar. There having been a joint purchase by P.N. Ramaswami and Senga Goundar, there was a partition under Exhibit A-9. Thereafter, P.N. Ramaswami settled 20 cents (which he got under the above partition) on his son Jagannathan under Exhibit A-17, Out of that 20 cents, 10 cents had been sold by the said Jagannathan to the third plaintiff herein under Exhibit A-18 dated 5th September, 1957, and 10 sents to V. Palaniswamy (brother-in-law of the third plaintiff under Exhibit A-12 dated 19th October, 1957).
20. The point to be noted is that all the plots sold by Sellamuthu were out of the divided western 4/5th of the land which he got under the final decree in O.S. No. 90 of 1943. Under that final decree the total extent which came to Sellamuthu is 5 acres 78 cents being the area covered by the westernmost plots A, B, C and D in the plan in that final decree. Sellamuthu did not purport to sell, by the several sales, anything more than the above extent.
21. The third plaintiff has put up a construction on the 20 cents of land which he and his brother-in-law purchased. Defendants 2 to 4 herein who got only 1/10th share in O.S. No. 90 of 1943 (plot E in the plan attached to the final decree therein) tried to disturb the possession of the third plaintiff in pursuance of the subsequent decree, that is in O.S. No. 456 of 1950, as under that decree they got 1/5th instead of 1/10th.
22. The contention on behalf of the plaintiffs is that the decree in O.S. No. 456 of 1950 should be treated as a nullity as the Court which passed the said decree had acted without jurisdiction. It is pointed out that the first defendant herein (who was the plaintiff in that suit) having purchased a specific plot measuring 3 acres 68 cents, which is part of the divided 4/10th share which Sellamuthu got under the final decree in O.S. No. 90 of 1943, and he having prayed in that suit only for allotment of that extent to him (even though he claimed general partition the Court had no jurisdiction at all to grant him a decree by which he was to take about 11 acres out of the extent of 14 acres 47 cents as 4/5th share in the entire land. This contention is not without force. It is true that in O.S. No. 456 of 1950, the first defendant has stated in the plaint therein that Chinna Mara Boyan was entitled to 13/ 20th shares in the entire land, even though under the decree in O.S. No. 90 of 1943 he got only 4/10th share. He had contended so, not because he laid claim for anything more than 3 acres 68 cents which he had purchased, but because the brothers of Chinna Mara Boyan had contended in O.S. No. 336 of 1946 that they also had a share in the land on the basis that the purchases made by Chinna Mara Boyan were on behalf of the family. As already seen, the first defendant herein got himself impleaded as the fourth plaintiff in O.S. No. 336 of 1946 which was later withdrawn with permission to file a fresh suit on the same cause of action, and it is after that he filed O.S. No. 456 of 1950. O.S. No. 132 of 1947 filed by some of the sons and a grand-son of N. Palani Boyan who claimed that in spite of all the five sons of N. Palani Boyan having sold their shares (two to Kandappa Goundar and three to Chinna Mara Boyan) still they are entitled to some share in the land, was also pending. It is under such circumstances, the first defendant who evidently did not want to lose any part of 3 acres 68 cents which he purchased, has contended that Chinna Mara Boyan had acquired 13/20 share by the several purchases he had made. The basis of the claim that Chinna Mara Boyan had 13/20th share is that Raju Boyan, the paternal cousin of Petha Boyan conveyed good title to an 1 /4th share, apart from Sella Boyan, brother of N. Palani Boyan conveying 1/4th share and three sons of N. Palani Boyan conveying 1/20th share each. It had been conceded in that plaint that a half share in the land belonged to Petha Boyan's branch even though Petha Boyan's exclusive title to the said half share had not been conceded. According to that plaint, Petha Boyan had an 1/4th share and his cousin Raju Boyan had an 1/4th share and that T.P. Palaniswami, the son of Petha Boyan acquired title from his father only to an 1 /4th share and not to a half share.
23. By some reasoning, the learned Judge who decided O.S. No. 456 of 1950 held that Petha Boyan's branch had no share at all after Peria Palani Boyan, the grand-father of Petha Boyan, had sold a half share to N. Palani Boyan. He, proceeded on the footing that N. Palani Boyan and his brother Sella Boyan became the owners of the entire extent of 14 acres 47 cents and that by the sale by Sella Boyan, Chinna Mara Boyan got title to a half share and by the sale by three sons of N. Palani Boyan the said Chinna Mara Boyan got 3/5th. This finding is without realisation that Sella Boyan had sold only on 1 /4th share and the three sons of N. Palani Boyan who executed sales in favour of Chinna Mara Boyan had conveyed only an 1/120th share each. In paragraph 41 of his judgment, the learned Judge has himself referred to the fact that Sella Boyan sold only an 1/14th share and the three sons of N. Palani Boyan sold only an 1/20th share each to Chinna Mara Boyan. On the finding of the learned Judge that Raju Boyan, (cousin of Petha Boyan) did not convey any title to Chinna Mara Boyan and on the facts found by himself in paragraph 41 referred above, Chinna Mara Boyan ought to have been held to have acquired title only to 4/10 share, as was the finding in the earlier suit namely O.S. No. 90 of 1943.
24. That the learned Judge (who decided O.S. No. 456 of 1950) had completely missed the controversy in the suit is evident from the curious finding that the first defendant herein (plaintiff in that suit) became entitled to a 4/5th share in the entire 14.47 acres. Needless to say that it is not the case of the first defendant that he was entitled to any such share. It is not even the case that the was entitled to what all Ghinna Mara Boyan had become entitled to in the several purchases made by him. All that he claimed was only 3.68 acres which he purchased from out of the divided 4/10th of Ghinna Mara Boyan. Different portions of the above-said divided 4/10th share of Ghinna Mara Boyan had been sold to the first defendant herein and several other parties. While the first defendant purchased 3.68 acres, P.N. Ramaswami and Senga Goundar purchased 1 acre, B. Palaniswami purchased 50 cents and Senga Goundar purchased 41 cents, all out of the western 4/10th which fell to Ghinna Mara Boyan's share in the final decree in O.S. No. 90 of 1943, obtained by Sellamuthu Boyan standing in the shoes of Ghinna Mara Boyan. Even though the above-said purchasers of different plots from Sellamuthu Boyan were also parties to the suit, the learned Judge did not allot anything to any of them.
25. Senga Goundar and V. Palaniswami had to file A.S. No. 98 of 1959 on the file of this Court challenging the decree, and the first defendant herein entered into a compromise with them, got a release of their rights in respect of the plots claimed by them. One Venkatachala Goundar, a subsequent purchaser of a plot who was also a party to that suit filed an application for setting aside the ex parte decree against him in O.S. No. 456 of 1950. The second plaintiff in the present suit filed a similar application to set aside the ex parte decree against his vendor, namely T.P. Palaniswami. Two other parties to that suit filed similar applications for setting aside the ex parte decree against them. On the application filed by Venkatachala Goundar, the Court set aside the decree in its entirety and all the four applications referred above had been allowed. Against that, there were four Civil Revision Petitions to this Court and this Court remitted the applications for fresh consideration. Then the first defendant herein (plaintiff in that suit) compromised the matter with Venkatachala Goundar by giving him 34 cents of land. The other applications to set aside the decree were not further pressed as in the meanwhile the plaintiffs filed the present suit.
26. There can be no doubt that the learned Judge who decided O.S. No. 456 of 1950 had not understood what the controversy was. The decree in O.S. No. 90 of 1943 was treated as infructuous on the ground that some of the sharers had not been made parties to that suit. But the learned Judge by the common judgment in O.S. No. 456 of 1950 and O.S. No. 418 of 1950 (O.S. No. 132 of 1947 on the file of the Court of the District Munsif, Tirupur) did not hold that any of them was entitled to any share. O.S. No. 418 of 1950 (O.S. No. 132 of 1947) on the file of the Court of the District Munsif, Tirupur) filed by some of the sons and a grand-son of N. Palani Boyan came to be dismissed. Peria Mara Boyan and Roya Boyan the brothers of Chinna Mara Boyan who claimed that Chinna Mara Boyan's purchases were on behalf of their family, had given up such a case and had taken a sale from Sellamuthu Boyan, successor-in-interest of Ghinna Mara Boyan of 3.68 acres. They conveyed the same to the first defendant herein which alone the first defendant as the plaintiff in O.S. No. 456 of 1950 claimed. But the learned Judge had reallotted the shares as it were only amongst the persons who were parties to the earlier, suit (O.S. No. 90 of 1943). While in the earlier suit T.P. Palaniswami (the predecessor-in-title of plaintiffs 1 and 2 herein) got 5/10th share, Venkatappa Goundar the second defendant herein (for himself and his brothers defendants 3 and 4 herein) got 1/10th share and Chinna Mara Boyan got 4/10th share, in O.S. No. 456 of 1950, the learned Judge held that T.P. Palaniswami was not entitled to any share at all, that defendants 2 to 4 herein were entitled to an 1/5th share and that Ghinna Mara Boyan was entitled to a 4/5th share.
27. However erroneous a decree might be, it cannot be set aside or treated as a nullity unless it is shown that the same had been obtained by fraud or that the Court had jurisdiction to pass such a decree. As pointed out by the Privy Council in Raj Want Prasad Pande v. Mahan Ram Ratan Gir 42 I.A. 171 : 29 M.L.J. 165 : 2 L.W. 671 : 30 Ind.Cas. 849 : A.I.R. 1915 P.C. 99, the method of exercise of the jurisdiction can never in law justify denial of the existence of such jurisdiction. I have already pointed out that the plaintiffs do not contend before me that the decree in O.S. No. 456 of 1950 is vitiated by fraud. Their only case is that the Court had no jurisdiction to pass such a decree. There can be no dispute that a Court would have jurisdiction only to hear matters in controversy. As pointed out by a full Bench of the Calcutta High Court in H. Nath Roy v. R. G. Barna Sarma A.I.R. 1921 Cal. 34 , jurisdiction of the Court is the power to hear and determine a case, to agitate and exercise any judicial power in relation to it. In other [words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or it takes cognizance of matters presented in a formal way for its decision. If a controversy is presented before Court it has certainly authority to decide such controversy even wrongly. Therefore, the simple question is whether in this case, the Court which decided O.S. No. 456 of 1950 decided only the controversy before it or something which was not in controversy. The learned Counsel for the first defendant contends that the issue before the Court was as to what was the share to which the various parties before the Court was entitled and that therefore it cannot be said that the Court had acted without jurisdiction in allotting 4/5th share to the first defendant (plaintiff in that suit). This is not acceptable. It was already seen that the first defendant as plaintiff had conceded in that plaint that a half share belonged to Petha Boyan's branch though he stated that Raju Boyan (cousin of Petha Royan) had conveyed an 1/4th share to Chinna Mara Boyan. There can be no doubt whatsoever that at least in respect of an 1 /4th share which was conceded to Petha Boyan as per the averments in the plaint in O.S. No. 456 of 1950, there was no controversy to be decided by the Court. It is true that in a suit for partition, every defendant who claims a share is also in the position of a plaintiff and that therefore the plaint averments alone are not the criteria to decide what the controversy was. But significantly, none of the defendants to that suit had ever contended that Petha Boyan was not entitled to even that 1/4th share conceded in the plaint. Therefore, there is no escape from the position that in respect of 1/4th share there was no controversy at all. Under such circumstances, the Court had no jurisdiction to decide even in respect of the said 1/4th share.
28. It is true, T.P. Palaniswami, who claimed from Petha Boyan had remained ex parte in O.S. No. 456 of 1950, but when his right to at least 1/4th share had been conceded in the plaint, he could have appeared even at the final decree stage to work out his right in respect of such 1/4th share. Because the Court held in the preliminary decree that T.P. Palaniswami was not entitled to any share at all there was no further notice to him in the final decree proceedings. It cannot be disputed that even when a sharer is ex parte in the preliminary decree stage, he is entitled to notice in the final decree proceedings, so that he can safeguard his right in respect of his share. But, because, in this case, the Court had exceeded its jurisdiction in deciding a matter which was not in controversy before it and held that T.P. Palaniswami, was not entitled to any share at all, there was no further notice to him in the final decree proceedings.
29. Navaneethammal v. Ammakannamal : AIR1944Mad513 , referred to by the learned Counsel for the first defendant has no application here. What is pointed out there is that when the Court has jurisdiction over the subject-matter, but arrives at an erroneous decision it cannot be ignored as a nullity. There can be no dispute about the above proposition but in the present case, the Court had purported to decide a matter which was not in controversy before it and therefore it had acted wholly without jurisdiction and it is not merely an erroneous exercise of jurisdiction : Durga Prasad Singh v. Rajendra Narayan Bagchi 40 I.A. 223 :26 M.L.J. 25 : 21 Ind.Cas. 750 : I.L.R. 41 Cal. 493 , referred to by the learned Counsel for the first defendant is also of no help to him. That is a case of a suit for recovery of rent as per a kabuliyat. The defendants in that suit pleaded abatement of rent because of an injunction granted against them in an earlier suit, which injunction was wider in scope than the one asked for in the said earlier suit. The Privy Council held that the defendants were not entitled to abatement of rent as they have failed to prove any fact which would entitle them to any abatement of the rent fixed by the kabuliyat. The question whether the injunction granted in the earlier suit which was wider in scope than that prayed for was without jurisdiction, did not fall for consideration.
30. The result is both the appeals fail and they are dismissed but under the circumstances of the case I make no order as to costs.