(Judgment of the Court was delivered by M.M.SUNDRESH, J) This appeal is preferred by the plaintiffs 2 to 4, in a suit filed for partition way back in the year 1994. In the written statement filed, the original defendants 1 and 2, while agreeing with the averments made in the plaint in sofaras partition sought for in the suit properties as mentioned in the original plaint are concerned, took a plea that there are certain other properties, which were not included in the suit are also liable for partition. Written statement has also been filed by the defendants 2 and 3 on 08.08.1994 in this regard. They have also given a schedule of properties, which are liable to be included.
2.Not expecting this, the appellants filed an application under order 23 rule 1 of the Civil Procedure Code seeking to withdraw the suit, wherein it was contended that they intended to file a separate suit for specific performance based upon the unregistered written document evidencing the earlier oral partition. The Application filed in I.A.No.63 of 1998 was dismissed as against which the Civil Revision was filed in C.R.P.214 of 2002 which was also dismissed with the following finding:
? ....6.The learned counsel for the respondents contended that the defendants are willing to transpose themselves as plaintiffs and to prosecute the suit to get their share in the property. The compromise entered into between the parties on 21.06.1992 has also not been accepted by all the parties and it will not cover other sharers also. It is stated that 13 items of properties were sought to be given to the sisters. Now, the plaintiffs want to file the suit for specific performance on the compromise entered on 21.06.1992. It is stated that some of the parties have gone back upon the compromise and moreover, the compromise will not cover all the sharers. It is an admitted fact that a partition suit is a comprehensive one and it will cover all the issues. If permission is given to the plaintiffs to withdraw and file a fresh suit for specific performance, necessarily they will not include some of the items of the properties and as a result of which, the contesting respondents would be driven to the necessity of filling a petition to include other properties also and, as such, instead of solving the issue, it will complicate the matter. Hence, I am of the view that the dismissal of the application by the Court below is proper and correct and no interference is called for. ?...
3.In the meanwhile, the original defendants 1 and 2 filed I.A.No.887 of 1995, seeking to transpose them as plaintiffs, as the appellants were not willing to prosecute the case. This application was dismissed as not pressed. The original first plaintiff died and therefore, the third appellant herein was brought in as his legal representative. The matter stood adjourned from time to time due to non co-operation of the appellants. The appellants filed another I.A.No.65 of 1998 seeking amendment. This application was dismissed. The Revision filed in C.R.P.No.2201 of 2003 was also dismissed for non prosecution.
4.Thereafter, the defendants 1 and 2 filed an application in I.A.72 of 2008, seeking to transpose them as plaintiffs as 5 and 6. This application was allowed. Another application was filed in I.A.No.98 of 2008, seeking amendment. In this application, the defendants 1 and 2 also seek to include the property mentioned in the written statement, which are not included in the original plaint. This application was also allowed by an order dated 20.01.2009. After allowing this application, once again the Trial Court has granted time to the appellants to contest the case. They did not choose to do so, rather they not even challenged the inclusion of the properties made by way of the amendment. No reply statement was filed to the written statement filed by the impleaded plaintiffs 5 and 6 in the year 1996 itself.
5.However, I.A.Nos.52 and 51 of 2009 have been filed by the appellants seeking to recall and reopen the evidence let in already on behalf of the plaintiffs 5 and 6. The Trial Court having found that these applications were filed just to drag on the proceedings and directed the appellants to present before the Court. Except one appellant other two did not turn out. Accordingly, having found that the suit has been reserved for Judgments, the applications were also directed to be posted along with the suit. Thereafter, the suit was decreed and consequently by a speaking order the applications filed were also dismissed. Challenging the judgment and decree rendered by the Trial Court, the present appeal has been filed.
6.The learned counsel appearing for the appellants would submit that notwithstanding the order passed in I.A.98 of 2008 dated 20.01.2009, it is open to the appellants to challenge the same before this Court. Secondly, it is contended that even otherwise the Trial Court ought to have given a finding that the properties included pursuant to the amendment are available for partition. Since the said exercise has not done completely, the appeal deserves to be allowed.
7.The learned counsel appearing for the respondents including the one who have been transposed as plaintiff would submit that the plaintiffs/appellants filed the appeal on unacceptable grounds. The appellants never raised any issue over the transposition and amendments made. The suit is pending for nearly 15 years. Thereafter, the Trial Court having found that the appellants attempted only to drag on the proceedings and after giving innumerable opportunities decreed the suit. It is the question of not rebuttal on behalf of the appellant with respect to the properties included at the instance of the plaintiffs 5 and 6. Hence, the application deserves to be dismissed.
9.The only point for consideration is, as to whether the appellants are entitled to challenge the order passed in the amendment application and the Trial Court is duty bound to record the finding that the properties included in pursuant to the amendment are liable for partition or not.
10.The facts recorded speaks for themselves. The appellants culled out the truth after seeing the written statement filed by the plaintiffs 5 and 6 and that is the reason why they have filed an application seeking to withdraw the suit. The said attempt ended in failure.
11.This Court has indicated that the issues will have to be thresh out in the pending suit, which is also inclusive of other properties. After all, in the suit for partition, every defendant is deemed to be a plaintiff. The appellants neither questioned the inclusion nor raise any plea that the properties mentioned in the original written statement filed by the plaintiffs 5 and 6 are self acquired properties. Therefore, it is a case of the admission by the appellants. In such view of the matter we are of the view that the decree rendered by the Trial Court cannot be assailed before us, on the ground that they ought to have been adjudicated.
12.The appellants did not question the transposition made, so is the case of amendment. Once it is clear that even as a defendant properties can be included as observed by this Court in Civil Revision Petition No.214 of 2002, the appellants ought to have raised the plea with respect to their self acquired properties. Having not raised the plea, the Trial Court has rightly decreed the suit by including those properties. Therefore, it is not open to the appellants to contend the contrary, for the first time before this Court. Hence, looking from any perspective, we do not find any error in the judgment and decree rendered by the Trial Court. After all the Trial Court is not expected to wait for a party to dispose of a suit. The delay would certainly deny the fair trial as held by the Honourable Apex Court repeatedly. It is a case, in which the appellants being the plaintiffs, did not want to contest the case after knowing that the other defendants including the one who have got transposed as plaintiffs have brought in other properties.
13.In such view of the matter, we do not find any error in the judgment and decree rendered by the Trial Court. The points sought to be raised are answered against the appellants. The appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.
To The Fast Track Court No.1, Tuticorin.
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