(Prayer: Second Appeal filed under Section 100 of CPC against the Judgment and Decree dated 30.4.2009 made in A.S.No.13 of 2008 passed by the learned Subordinate Judge, Poonamallee, setting aside the Judgment and Decree dated 26.4.2007 in O.S.No.436 of 2004 on the file of the learned District Munsif, Ambathur.)

1. Following are the allegations averred in the amended Plaint:

1(a). The grand father of Plaintiffs by name Ramasamy Naidu and Mannar Naidu were brothers. The father of the Plaintiffs-Kanniah Naidu and Ramanjulu Naidu were brothers. The suit property is their ancestral property. It is 5.09 acres of land comprised in Survey No.18/2 in Muthapudupet Village. The suit property along with the adjoining properties were required by the defence department and temporarily the lands were taken away by the said department. Even at the time of requisition, the Government authorities recognised the Plaintiffs paternal uncle Ramanujulu Naidu and Nathamuni Naidu Naidu (son of Mannar Naidu) as owners and pattadhars of the suit property. After 1963, the lands were re-delivered to the family by the defence department. The suit property is the joint family property and as such the Plaintiffs branch is entitled to half share in respect of the suit property. The land was kept for some time and as the Plaintiffs were away from the suit village, they could not attend the affairs of the said property. Kanniah Naidu, father of Plaintiffs 2 to 4 approached 1st Defendant in the year 1985 about Ayudha Pooja day to effect a partition of the suit property or to sell away the entire property and to deliver half of the sale proceeds to the Plaintiffs.

1(b). It was at that stage Kanniah Naidu came to know that the patta was already granted to the 1st Defendant, who began to claim title in himself and refused to allot share belonging to the Plaintiffs branch. The Plaintiffs father initiated proceedings before the Tribunal at Chengalpattu Settlement Authority (Sub-Court, Chengalpattu) for cancellation of Patta granted in favour of 1st Defendant and since there was a delay in filing the Appeal, the same was filed with an Application to excuse the delay. Presently, the Plaintiffs file a Suit for passing of the preliminary decree, allotting them half share in the suit property and also for mesne profits.

2. In the Written Statement filed by the First Defendant, the following contentions have been raised:

2(a). The Suit is not maintainable. The First Defendant vehemently denies the origin and nature of the suit property as alleged in the Plaint. The village was requisitioned by the Defence Department and the owners were paid recurring compensation. The First Defendants father Nathamuni Naidu was alone in possession and enjoyment of the suit property as absolute owner and was receiving recurring compensation from the authorities exclusively and none else was entitled to the suit property. At no point of time, the Plaintiffs father or the Plaintiffs were in possession of the suit land nor their ancestors were recognised as owners by the Government authorities. Ramanujulu Naidu did not enjoy the property in S. No.18/2 viz., the suit property at any point of time as owner or pattadar. This Defendants father Nathamuni Naidu alone was recognised as owner of the suit land, who was in absolute possession and enjoyment of the same and after his death in 1967 the First Defendant is an exclusive possession and enjoyment of the suit property exclusively till date by paying kist regularly and also by cultivating the same.

2(b). The suit village is a leasehold village and as per Leasehold (Abolition and Conversion to Ryotwari) Act, 27 of 1963, the Government conducted suo motu enquiry in 1968 after issuing notice to all the persons in possession and enjoyment of their properties, as such the notice was received by this First Defendant. Parthasarathy Naidu or Kanniah Naidu, the fathers of the first Plaintiff and Plaintiffs 2 to 4 respectively, did not make any claim at the time of enquiry for the suit land.

2(c). Ryotwari Patta was granted to the respective owners in the suit village, as per the order dated 10.3.1969, by the settlement officer and accordingly, exclusive patta No.177 was issued in the name of first Defendant and his mother Kamalammal and the First Defendant is in exclusive possession and enjoyment of the suit property by raising seasonal crops and paying kist for several years regularly till date and he is the absolute owner of the same.

2(d). Equity was conducted by the Settlement Tahsildar for all the properties in the suit village and the first Plaintiffs father Late Parthasarathy Naidu got himself examined as P.W.28 and P.W.30, claimed joint patta for S.No.1/1A and accordingly joint patta was issued in favour of the First Defendant and Parthasarathy Naidu. As no claim in any form or capacity was made by Parthasarathy Naidu or from anyone in the enquiry in respect of the land in S.No.18/2, Patta was granted in the name of 1st Defendant exclusively. It is submitted that the Plaintiffs are not entitled to the suit property and are also estopped from making any claim for the same. It is false to state that the suit property is an ancestral one and is a joint family property. It is incorrect to allege that the Plaintiffs father approached 1st Defendant and claimed partition of the suit property in the year 1985 in or about Ayudha Pooja day. The Plaintiffs failed to explain the delay of each and every day in filing the Suit. There is a delay and laches on the part of the Plaintiffs in claiming partition, that too, after several years, knowing very well about the grant of patta in favour of 1st Defendant. Hence, there is no cause of action for the Suit.

2(e). The allegations that the Plaintiffs were away from the suit village is not true. The 3rd and 4th Plaintiffs are residing in the suit village and Palavedu Pettai village, which is close to the suit land since their childhood and that the 1st and 2nd Plaintiffs used to visit their village often. There was no demand from their fathers to the 1st Defendant at any point of time. The Plaintiffs themselves know very well that they have no right, title or interest over the suit property in any manner whatsoever. They have wantonly arrayed the Defendants 2 to 6 who do not have any right or title in the suit property.

2(f). Parthasarathy Naidu and Kanniah Naidu filed an unnumbered C.M.A. in S.R. No.10326 of 1985 before the Tribunal at Chengalpattu against 1st Defendant to set aside the order dated 10.3.1969 granting Patta in his favour, that too, after an inordiante delay of 16 years 9 months 10 days and the same is still pending and they have not taken any steps to speed up the matter therein, which shows that they do not have any interest, right or title in any manner over the suit property. After the death of the above said Kanniah Naidu and Parthasarathy Naidu, the Plaintiffs have filed the Suit after a delay of 24 years, for partition.

2(g). On 14.5.1993 for 10 years, upto Fasli 1402, the Plaintiffs paid kist on a single receipt in the account of the 1st Defendants mother Kamalammal with the connivance of V.A.O., who knows fully well that the First Defendant is continuously paying kist to the suit property for several years without any interruption. The act of V.A.O. is highly illegal and unwarranted against whom, 1st Defendant reserves his right to take legal action. The Suit for partition is filed after lapse of 24 years, that too, when the Plaintiffs are out of possession and hence the same is barred by limitation and the right of partition if any, has got extinguished in the light of the Patta issued in favour of 1st Defendant as per order dated 10.3.1969.

2(h). There was no demand either from the fathers of the Plaintiffs or by themselves at any point of time. The Plaintiffs claiming under their ancestors are estopped from making any claim over the suit property. The framing of the Suit, mode of valuation for the suit property and the payment of Court fee are incorrect, as the Plaintiffs are out of possession of the suit property. The Geneology referred to by the Plaintiffs and the relationship alleged by them are denied. The other Defendants are in no way related to the suit property and they are unnecessary parties and there is no cause of action or relief against the Defendants prayed for by the Plaintiffs and the Suit is bad for misjoinder of parties. The Plaintiffs have not filed any material documents and only on the strength of the disputed and fabricated kist receipts, filed the Plaint. Their claim is not bona fide. Hence the Suit may be dismissed with exemplary costs.

3. After analysing the evidence on record, the learned District Munsif cum Judicial Magistrate, Ambathur, passed preliminary decree and directed mesne profits be determined on separate Application to be filed under Order 20, Rule 12, C.P.C. by the Plaintiff.

4. The First Defendant carried the matter in Appeal in A.S.No.13 of 2008 on the file of the Sub-Court, Poonamallee and the Appellate Court on consideration of materials, allowed the Appeal by dismissing the Original Suit. Hence, the defeated Plaintiffs before the Appellate Court have preferred the present Second Appeal before this Court.

5. When the case was taken up for admission, both the learned Counsel prayed the Court to take up the main Appeal for disposal and by consent of both sides, the Second Appeal itself was heard and this judgment is being rendered.

6. The following substantial questions of law were framed in their presence, hearing them:

1. Whether the Suit claim is barred by limitation

2. Whether the Plaintiffs are estopped from claiming share in the suit properties

3. Whether the Suit is bad for non-joinder of necessary parties

4. Whether the Suit is hit by the provisions of non-compliance of Order 22, Rule 4(4), C.P.C.

Point Nos.1 & 2

7. The Genealogy table has been produced by the Plaintiffs showing the relationship of parties as follows:

8. It is admitted fact that various extents of lands in the suit village were required for the Defence Department in the year 1943. Ex.A-1 is the certified copy of the proceedings of the Collector of Chengalpattu dated 15.11.1943 under Rule 75-A(1) of the Defence of India Rules, by means of which he requisitioned the lands in the suit village. He has also provided that the owners of the land be paid compensation. The list of lands has been appended to the proceedings in which it is stated that R. Ramanujalu Naidu, M. Govindasamy Naidu and M. Vijayaraghavalu were owners of the suit property. Ex.A-2 is another proceedings of the District Collector dated 18.11.1943 as regards the quantum of compensation payable to the owners or other interested persons of the properties. In this document R. Ramanjulu Naidu and N. Nathamuni Naidu were shown as owners of the properties and the compensation payable was Rs.30.8.7. Ex.A3 is also the proceedings of the District Collector dated 26.9.1946 extending the period to continue until further orders. In the list annexed to this proceedings in the suit property, the names of R. Ramanjulu Naidu, M. Govindasamy Naidu, M. Vijayaraghavalu and Nathamuni Naidu are found. The above said documents would show that earlier, at the time of requisitioning the suit land, the names of forefathers of the parties were entered in revenue records.

9. Ex.A-7 is the kist receipt issued in the name of the Plaintiffs 1 to 4 on 14.5.1993 for payment of kist for 10 years upto Fasli 1402 for Patta No.177. It is also referred therein, that N. Kamalammal was pattadar. It can be observed that this document has been secured only for the purpose of filing the suit. Exs.A-8 to A-10 are not related to suit property, so also the unregistered koorchit Partition Deed dated 4.6.1975, Ex.A-11 stated to have been executed for division of all the properties between the Plaintiffs group and Defendants group, which is concerned with Survey Numbers 83/1 and 84. Pertinent it is to state that the suit property has not been included in Ex.A-11 and there was no mention about the existence of the suit property as join family property.

10. It is the contention of the Respondents/Defendants that during the proceedings before the Settlement Tahsildar in the year 1969, the forefathers of the Plaintiffs did not state anything with regard to the suit property, even though they spoke about their interest and enjoyment over other properties and hence they are estopped from claiming title or right over the suit property. In support of that contention they have produced Ex.B-2 proceedings of the Settlement Tahsildar dated 10.3.1969 wherein Parthasarathy Naidu S/o Ramanujulu Naidu has deposed only about Survey No.4/1 and not with regard to Survey No.18/2. The arguments as to the estoppels is controverted by the learned Senior Counsel Mr.S. Parthasarathy appearing for the Appellants, who says that no estoppel would operate against the Appellants with regard to the earlier proceedings before the Revenue Authorities and that mutation of names in the Revenue Records would not estop these Appellants from laying claim over the properties. For this preposition, he placed reliance of a Division Bench decision of Jammu and Kashmir High Court in Ahsan Dar and others v. Mohd. Dar, AIR 1963 J & K 15 in which it is held thus:

In order that estoppel by record may arise out of a judgment or order, the Court which pronounced the judgment or order must have had inherent jurisdiction to do so. Lack of inherent jurisdiction deprives the judgment or order of any effect. Such a judgment or order cannot operate as an estoppel even against the person who sought the assistance of the Court whose jurisdiction is impugned. Therefore, an order passed by a Revenue Officer deciding a question of title to property or transferring title being wholly devoid of jurisdiction a plea of estoppel by record cannot be founded on an order so wholly devoid of inherent jurisdiction. Mere consent of a party to the making of the order in question by the Revenue Officer will not give that order legal force and validity.

A gratuitous admission made by a party in possession in mutation proceedings before a Revenue Officer that another person is the owner of the property does not bind either the maker or the person claiming under him and cannot operate as estopped.

11. But the facts of the present case are otherwise. Parthasarathy Naidu neither gave his consent to pass an order with regard to the suit property nor the Revenue Court did have the jurisdiction to pass such order. He has not made any admission as to the suit property either. In this circumstance, the contention, had Parthasarathy Naidu any interest particularly joint interest over the suit property, he might have spoken about the same before the Revenue Court and since he did not mention about the suit survey number, it has to be held that the Plaintiffs being his descendants have to be held to have been estopped from claiming right over the suit property, is acceptable. Ex.B-3 is copy of Patta No.177 issued in the name of First Defendant and his mother Kamalammal. Ex.B-4 is certified copy of A Register which was issued on 30.10.1972 in which it is mentioned that the suit property stands in the name of the First Defendant and his mother. It shows that subsequent to 1969, their names alone have been standing in the Revenue Records.

12. Ex.B-5 is Survey and Settlement Register, which also indicates that their names have been entered for the suit property. Earlier, the name of Nathamuni Naidu, father of 1st Defendant had been entered. Ex.B-6 to B-21 are the kist receipts paid for Patta No.177 from Faslis 1389 to 1411. Exs.B-22 to B-27 are the certified copies of the Adangal Extracts for Faslis 1384 to 1400 would show that 1st Defendant had cultivated the suit land. These copies have been issued by the Head Quarters Deputy Tahsildar. These are the piece of evidence to show that the First Defendant alone was exclusively enjoying the land for several years. Ex.B-28 is the Electricity Consumption Card standing in his name.

13. Parthasarathi Naidu, Kanniah Naidu and the First Plaintiff filed an Application I.A. No.1/86 before the Leasehold Abolition Tribunal (Sub-Court), Chengalpattu, [Ex.B-30] to condone the delay of 16 years 9 months and 10 days i.e., delay from 10.3.1969, when the Settlement Tahsildar passed proceedings issuing Patta in favour of the forefather of the First Defendant. Ex.B-31 is the certified copy of the counter filed by the First Defendant. The said Petition was dismissed by the learned Sub-Judge, Chenglepattu on 4.11.2004, refusing to condone the delay. Thereupon the Plaintiffs preferred C.R.P.(NPD) No.1878 of 2005 before this Court and this Court on 26.10.2005 dismissed the C.R.P. at the admission stage, observing that the findings of the fact by the Court below are appropriate and there was no circumstance to interfere with the same.

14. The above said documentary evidence would go to show that after the issuance of Patta by the Settlement Tahsildar in the year 1969, the First Defendant has been in possession and enjoyment continuously. It is worthwhile to note that till filing of the Suit in the year 1993, the Plaintiffs have not moved their little finger claiming any right over the property. They slept over the matter for about 24 years and filed the Suit in the year 1993. In this context, the learned Senior Counsel Mr.S.V. Jayaraman appearing for the First Defendant would submit that the suit claim has been miserably barred by time, that there is no evidence to show that earlier to 1993, the Plaintiffs advanced their claim to get share in the property and that Court may presume ouster from the attending circumstances of the case. Ouster has not specifically been pleaded in the Written Statement. However, the First Defendant has categorically mentioned in his Written Statement the he is holding exclusive possession over the property, that the Plaintiffs are out of possession over 24 years and that the rights of the Plaintiffs got extinguished by long delay and laches. Even though it is pleaded in the Plaint that the Plaintiffs were away from the suit village, there is no convincing evidence on record to show that their claim had been alive from the beginning. The long inaction on the art of the Plaintiffs for 24 years would establish that their rights have extinguished. They have excluded from the possession by the First Defendant and in this regard, the law holding the filed has to be followed.

15. In the book Law of Limitation and Adverse Possession by Rustomji, Ninth edition 2006, the excerpts in page No. 1499 and 1500 go as follows:

11. Exclusion must be total and absolute: Article 110 requires that the claimant must have been entirely out of possession and excluded from possession by those against whom he claims Govinda Pillai v. Chidambara, 1866 (3) Mad HC 99 i.e., the claimant must be absolutely out of possession and exclusive possession held by another Govinda Pillai v. Chidamabara, 1866 (3) Mad HC 99. In order to bar a Suit under Article 110 there must be an exclusion (to Plaintiffs knowledge for over 12 years) from all participating in the property of which a share is sought. Krishnabai v. Khangowada, ILR (1893) 18 Bom 197. In Article 110 excluded means totally excluded Nirman Singh v. Lan Rudra Pratap Narain, ILR (1926) 48 All 529 (PC) i.e., the Article (110) contemplates an exclusion of the Plaintiffs from all interest in the property of the joint family of which they were members Nirman Singh v. Lal Rudra Pratab Narain, ILR (1926) 488 All 529, 541.

15(a). Article 110 of Limitation Act reads as follows:

Description of Suit Period of Limitation Time from which period begins to run

110. By a person excluded from a joint family property to enforce a right to share therein Twelve years When the exclusion becomes known to the Plaintiff.

16. It can be easily inferred and observed that the Plaintiffs have been excluded from the enjoyment of the property atleast from 1969. There is no material to show that they had been in joint possession of the property. It is true, that mutation in Revenue Records would not confer any title to the persons whose name is found in them. But they would serve as an evidence to show that he is enjoying the property. If his enjoyment continues over the statutory period, his right becomes absolute and he becomes absolute owner of the property. In case, if there had been no claim from the other joint owners of the property, the person who claims exclusive possession must show that his possession was continuous, uninterrupted, open and he was holding the right to the knowledge of the other joint owner. The oral evidence on record would indicate that the Plaintiffs are residing in the suit village or in the nearby places. Hence they have been having knowledge of possession by the First Defendant. By the pleadings and evidence, it could be seen that the fact of exclusion strikes the knowledge of the Plaintiffs only in 1993, after 24 years from the date of issuance of patta in the name of the First Defendant.

17. It is well settled proposition that the jurisdiction of the Civil Court is not at all ousted in the matter of deciding title, even when Patta was issued under the provisions of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) and Tamil Nadu Minor Imams (Abolition and Conversion into Ryotwari) Act (1963). This proposition has been laid down in the following cases:

1. Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal v. Parvathi Ammal & Others, 1998 (1) CTC 585 (SC): 1998 (2) LW 188 [LQ/SC/1996/440] ;

2. Srinivasan and 6 others v. Madhyarjuneswaraswami, Pattavaithalai, Thiruchirapalli, 1998 (1) CTC 630 (FB): 1998 (2) LW 189;

3. Sate of Tamil Nadu v. Ramalinga, AIR 1986 SC 794 [LQ/SC/1985/164] ;

4. T.K. Ramanujam Kavirayar and others v. Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal, Courtalam, Thiruvavaduthuriai Adheenam, 1988 (2) LW 513: 1987 TLNJ 91;

5. Society of St. Josephs College by its Procurator v. A. Doraisamy (died) and others, 1998 (2) MLJR (Mad.) 349

18. There is no pleading nor evidence as to when it was brought to the knowledge of the Plaintiffs that they have been excluded from possession. They should have filed Suit within twelve years from the date of exclusion.

19. As per Article 110 of the Limitation Act, in view of the above said discussion, it is held that the suit claim of the Plaintiffs is barred by limitation. Point Nos.1 and 2 are answered in the affirmative.

Point No.3

20. The learned Senior Counsel for the Respondents would strenuously contend that two co-sharers by name Rajendran and Ravindran have not been included in the Suit, who are sons of Govindasamy Naidu, 6th Defendant in the Suit, who remained ex parte and died pending the trial of the Suit. He invited attention of the Court to the provision in Order 1, Rule 9 of C.P.C. which reads as follows:

9. Misjoinder and non-joinder:

No Suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every Suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it.

21. When proper parties were not included in the Suit, the Suit is not bad for non-joinder, but if the parties who are not on the array of the parties in the Suit who are necessary parties in whose absence no final adjudication cold be made, then the Suit has to be held bad for non-joinder of necessary parties. If proper parties are not added, the Court may allow further time affording opportunity to the Plaintiff to include them. But if the necessary parties were omitted to be included in the Suit, then the Plaintiff has to face the legal consequence of dismissal of the Suit. In the absence of necessary party, no effective decree could be passed. In short, non-joinder of proper party is not fatal while non-joinder of necessary party is fatal to the case. When the Court sees that a particular party, who has been ignored by the Plaintiff in the suit, there is no option for the Court except to dismiss the same.

22. The learned Senior Counsel for the Respondents cited two authorities to stress this position. In a Division Bench decision of this Court reported in A. Ramachandra Pillai, v. Valliammal (died), 1987 (100) LW 486 the learned Judges have extracted and followed the earlier decision of Supreme Court in Kanakarathammal v. Loganatha, AIR 1965 SC 271 [LQ/SC/1963/304] and held that the non-joinder of the necessary party would lead to the dismissal of the Suit. Such extraction of the Apex Court decision as well as the observation of the Division Bench are as under:

It is true that under Order 1, Rule 9 of the Code of Civil Procedure no Suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the Suit is bound to be fatal. Even in such cases, the Court can under Order 1, Rule 10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation. Once it is held that the Appellants two brothers are co heirs with her in respect of the properties left intestate by their mother, the present Suit filed by the Appellant partakes of the character of a Suit for partition and in such a Suit clearly the Appellant alone would not be entitle to claim any relief against the Respondents.

This decision is thus an authority for the position that in a Suit for parties, all the sharers are necessary parties and also for the position that the Suit is liable to be dismissed for non-joinder of any one of the parties. In T. Panchapakesan and others v. Peria Thambi Naicker and others, 1972 (85) LW 841 (DB) also, a Division Bench of this Court has taken a similar view by judgment dated 18.7.1972. We are accordingly of the view that the finding of the learned Subordinate Judge on issue No.10 holding that the suit is not bad for non-joinder of Nagarathinams heirs is unsound and liable to be set aside. Accordingly, we hold that the Suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.

23. The learned Senior Counsel for the Respondent has also admitted that specific defence as to the non-joinder of necessary party has not been raised in the Written Statement. However, it is open to the Defendant to raise the same at any stage of the case as it goes to the root of the matter. To establish has contention, he garnered support from a decision of this Court in Shanmugham and others v. Saraswathi and others, AIR 1997 Mad. 226 [LQ/MadHC/1996/475] where it is held as follows:

9. The contention of non-joinder of necessary parties in a Suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a Suit for partition is not maintainable in the absence of some of the co-owners. See A. Ramachandra Pillai v. Valliammal, 1987 (100) Mad LW 486.

In view of the above said principles, this Court is of the considered view that non-joinder of necessary party in this partition Suit is fatal and the Suit has to face dismissal on this point. The point is answered accordingly.

Point No.4.

24. The learned Senior Counsel for the Respondent would contend that the 6th Defendant Govidasamy Naidu remained ex parte and died. His sons were originally impleaded as parties and even after the death of the 6th Defendant no exemption has been given by the Court to the Plaintiff from substituting the legal representatives. Order 22, Rule 4(4) goes thus:

4. Procedure in case of death of one of the several Defendants or of sole Defendant.-

1.

2.

3.

4. The Court whenever it thinks fit, may exempt the Plaintiff from the necessity of substituting the legal representatives of any such Defendant who has failed to file a Written Statement or who, having filed it, has failed to appear and contest the Suit at the hearing; and judgment may, in such case, be pronounced against the said Defendant notwithstanding the death of such Defendant and shall have the same force and effect as if it has been pronounced before took place.

25. He also referred to a decision of this Court in Krishnaveni and others v. Ramachandra Naidu and another, 1998 (1) CTC 423 [LQ/MadHC/1998/271] : AIR 1998 Mad. 379 [LQ/MadHC/1998/271] wherein earlier decision of this Court in Elisa v. A. Doss, AIR 1992 Mad 159 [LQ/MadHC/1991/11] by M. Srinivasan, J. (as His Lordship then was) was extracted and the operative portion goes thus:

It is seen from the rules that an Application to bring the legal representatives on record shall be made within the time limited by law and if no Application is made within the said period, the Suit shall abate as against the deceased Defendant. That is the effect of sub-rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the Plaintiff from the necessity of bringing on record the legal representatives of any Defendant, who has failed to file a Written Statement, failed to appear and contest the Suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting the Plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the Plaintiff to file a written Application seeking such exemption, as the Rule does not require one. Under the said Rule, the Court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the Defendant who died should have remained ex parte, either without filing the Written Statement or after filing the Written Statement. It is clear from the language of the said Rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said Rule reads that the Court may exempt the Plaintiff and judgment may, in such case pronounced. That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the Suit.

26. The above said decision goes to the effect that there is no formal Petition to be filed by the Plaintiff for such exemption, but there must be an order of exemption by the Court which should precede pronouncement of the judgment. In this case, no such circumstance prevails. Hence on this account, the judgment of the Trial Court suffers from illegality. This point is answered in affirmative.

Conclusion:

27. An overhaul of the circumstances of the case would pave way to conclude that the right of the Plaintiffs to claim partition in the suit property has been woefully barred by limitation. They are estopped from claiming right in the suit property and the Suit is bad for non-joinder of necessary parties.

28. In view of the observations and findings recorded by this Court, the judgment and decree of the Appellate Court, challenged before this Court do not warrant any interference, which deserves to be confirmed and they are accordingly confirmed. The Second Appeal fails.

29. In the result, the Second Appeal is dismissed, confirming the judgment and decree passed in A.S. No.13 of 2008 by the Subordinate Judge, Poonamallee. No costs.