Judgment : 1. This second appeal is directed against the judgment of the learned Subordinate Judge, Srivilliputhur, in 86 of 1983, confirming the judgment of the learned District Munsif, Srivilliputhur, in O.S. No. 872 of 1981. 2. The plaintiffs filed the suit for cancellation of the ex parte decree passed in O.S. No. 872 of 1981 dated 3.2.1983 in respect of the properties covered under second and third schedule of the plaint, as against the second plaintiff, for declaration that plaintiffs 1 and 2 have equal half share in plaint Schedule 2 and 3 properties and for defendants from interfering with a permanent injunction restraining the the plaintiffs' peaceful possession. According to the plaintiffs, the suit properties originally belonged to the joint family consisting of Neerathilinga Asari, his wife Ganapathy Ammal and their sons Ramalingam Asari, Veerappan Asari. Though some of the properties has been purchased in the name of Ganapathi Ammal, they were purchased only from and out of the joint family funds and were always treated as joint family properties. The following is the genealogy of the family:- 3. Neerathalingam Asari died in the year in 1944, and subsequently, Ramalingam, Veerappan. and Ganapathi Ammal entered into a family arrangement and pursuant to an oral division, they were in separate enjoyment of their respective properties. As per the family arrangement, the first schedule property was allotted to Ramalingam and second and third schedule properties were allotted in favour of Veerappan and all of them were in enjoyment from 1944. Veerappan died in 1950. The second plaintiff being the son of Veerappan was a mentally imbalanced and a timid person. The first plaintiff, mother of the second plaintiff mortgaged plaint second schedule properties to one Velayee Ammal to meet the medical expenses of the second plaintiff to the knowledge of the defendant. The defendants are the sons and daughters of Ganapathi alias Pillaiarammal, the daughter of Neerathilinga who were also aware of the mortgage of plaint second schedule properties. Taxes were also being paid by the plaintiffs. Likewise, with reference to the property under first schedule, Ramalingam was dealing with the property independently by mortgaging the property and had in fact sold it to one Natarajan. As regards one of the mortgage deeds executed by Ramalingam, the first defendant had attested the same as a witness. Taxes were also being paid by the plaintiffs. Likewise, with reference to the property under first schedule, Ramalingam was dealing with the property independently by mortgaging the property and had in fact sold it to one Natarajan. As regards one of the mortgage deeds executed by Ramalingam, the first defendant had attested the same as a witness. It was therefore, clear that to the knowledge of the defendant they had no rights over the property. In any event, the "plaintiffs have also acquired title by adverse possession in respect of the plaint second and third schedule properties. Even if the defendants had any share they have been ousted in the year 1954 itself. Since Veerappan (husband of the first plaintiff) died in or about 1950, she had acquired full rights over the half of the property by virtue of Hindu Women Right to Property Act, 1937 and the said rights had also enlarged into absolute rights as provided under Hindu Succession Act, 1956. The remaining half share belongs to the second plaintiff and they are in possession of the properties for more than 30 years. While so, the defendants had instituted a suit in O.S. No. 872 of 1981 seeking for a declarat ion that plaint schedule 1 and 3 properties belong to them. But in that suit, the first plaintiff was not added as a party. The second plaintiff, namely, the second defendant in that suit engaged his own advocate. But even before filing the written statement during February, 1982, the first defendant taking advantaged the second plaintiff’s mental instability had falsely represented to him that both the second plaintiff and the third defendant in that suit had been deleted from the suit and that the sui t was being proceeded only as against Natarajan, the third party purchaser and that therefore the second plaintiff need not necessarily come to Court or incur any expenditure. He was also told that he need not contact the advocate since he may demand fees from him and also took oath on milk that he will not take any further action as against him (second plaintiff). He was also told that he need not contact the advocate since he may demand fees from him and also took oath on milk that he will not take any further action as against him (second plaintiff). The plaintiff came to know all these facts only when taking steps to set aside the decree in O.S. No. 872 of 1981 and he has been fraudulently, prevented from attending the Court proceedings, only as a result-of false representation and the false promise of the first defendant and consequently had allowed the suit to be decreed ex parte. The suit was contested only by Natarajan and the suit was dismissed on 3.2.1983 only with reference to the first schedule property, but with reference to the second and third schedule properties the suit was decreed as against the second plaintiff. During 1982, the second plaintiff was completely mentally unsound and depressed. Thereafter the plaintiffs came to know that in respect of second and third schedule properties they have obtained a decree against the second plaintiff and that they were going to take over the property. As soon as this came to the notice of the second plaintiff, he filed an application in I.A. No. 383 of 1983 seeking to set aside the ex parte decree. The said application was dismissed and as against the said order C.M.A. No. 15 of 1983 was filed and was pending for disposal. The plaintiffs further pleaded that the decree in O.S. No. 872 of 1981 will not bind them. As far as second and third schedule properties are concerned, both the plaintiffs have half share each. The decree having been obtained fraudulently, was not binding on them. Hence the present suit. 4. Defendants 1 to 3 in their written statement contended as follows:- The properties were not the joint family properties of Neerathilingam. They belonged absolutely and exclusively to Ganapathiammal, maternal grandmother of defendants. She purchased the properties with her own and separate funds The properties were not treated as joint family properties. The family arrangement as pleaded by the plaintiffs was also denied. None of the properties was allotted either to Ramalingam or Veerappan. Therefore, the plaintiffs are neither entitled to nor have they inherited the suit properties. They have no title or possession as claimed in the plaint. The family arrangement as pleaded by the plaintiffs was also denied. None of the properties was allotted either to Ramalingam or Veerappan. Therefore, the plaintiffs are neither entitled to nor have they inherited the suit properties. They have no title or possession as claimed in the plaint. The properties belonged absolutely to Ganapathiammal and after her intestate death in 1947, her only daughter Ganapathiammal alias Pillaiarammal inherited the suit property and she was in exclusive possession of the properties as absolute owner. Pillaiarammal died intestate on 13.5.1955 and thereafter, the defendants inherited as the legal heirs of their mother. Hence, the defendants alone are the owners of the property. The allegations in the plaint that the second plaintiff was mentally unsound and that he was under treatment, were denied as false. The plaintiffs have neither title nor prescriptive title by adverse possession. In the earlier suit in O.S. No. 872 of 1981, there was no necessity to implead the present first plaintiff as she had no rights. The present second plaintiff as second defendant in the earlier suit, though appeared through counsel did not contest the suit and hence the suit was decreed in favour of the plaintiffs (the present defendants) as against the second plaintiff. Therefore, the second plaintiff had fraudulently and with ulterior motive filed I.A. No. 383 of 1983 to set aside the decree passed against him on frivolous grounds. The application was dismissed after contest and the appeal filed by the second plaintiff was still pending. Therefore, the decree passed against the second plaintiff had become final and was binding on him. Further, the second plaintiff’s claim was barred by res judicata and constructive res judicata as a result of the decision in the previous suit in O.S. No. 872 of 1981. The claims that the second plaintiff was of unsound mind and that he was persuaded not to contest the previous suit and that it was repr esented that as if he was exonerated from the suit etc. were denied. The plaintiffs had fraudulently chosen to come forward with such false allegation only to get over the binding nature of the decree passed in O.S. No. 872 of 1981. Therefore, the suit was liable to be dismissed. 5. were denied. The plaintiffs had fraudulently chosen to come forward with such false allegation only to get over the binding nature of the decree passed in O.S. No. 872 of 1981. Therefore, the suit was liable to be dismissed. 5. The trial Court held that the prayer that both the plaintiffs were entitled to equal half share and the further pleading that they had perfected title by adverse possession were inconsistent and contradictory and that there was no evidence to show that the properties purchased in the name of Ganapathi Ammal were benami. The plea of family arrangement was also disbelieved. With the result, the trial Court held that they had not established their right over the suit properties and the claim of adverse possession was also rejected. Likewise the contention of the plaintiff^ regarding the alleged fraud in having obtained a decree against the second plaintiff was also rejected. The plea of the defendant that the suit was barred by res judicata as well as the limitation were upheld by the trial Court. With the result, the suit was dismissed. On appeal also, the said findings were confirmed and the appeal filed by the plaintiffs was dismissed. Hence, the present Second Appeal. 6. It is also necessary to point out at this juncture that the earlier suit in O.S. No. 872 of 1981 filed by the defendants in the present suit, which is now sought to be set aside by the plaintiffs was for a declaration that the suit items 1 and 3 belonged to them and for possession and mesne profits. The first defendant in the suit was alienee of item No.l having purchased the same from Ramalingam Asari. The second defendant in that suit who is the second plaintiff in the present suit was set exparte. The trial Court held that as far as first item was concerned which was alone relevant to the alienee/first defendant in that suit, he as well as predecessors in title (Ramalingam Asari) had perfected title of adverse possession and hence dismissed the suit in respect of item No.l. In respect of other items, the suit was decreed exparte against the second defendant. A.S. No. 863 of 1983 filed by the plaintiffs was also dismissed and Second Appeal No. 1799 of 1985 was also dismissed by this Court by judgment dated 6.8.1998 .All the findings rendered by the Courts below stood confirmed. A.S. No. 863 of 1983 filed by the plaintiffs was also dismissed and Second Appeal No. 1799 of 1985 was also dismissed by this Court by judgment dated 6.8.1998 .All the findings rendered by the Courts below stood confirmed. 7. While admitting the present second appeal, the following substantial questions of law has been framed by this Court:- (i) Whether the first defendant can claim adverse possession in the absence of a plea and proof that Ramalingam Asari asserted hostile title to the knowledge of plaintiffs 4 to 6? (ii) Whether possession of Ramalingam Asari being the maternal uncle of the plaintiffs 4 to 6 and father-in-law of the 1st plaintiff, can be said to be adverse to the plaintiffs? (iii) Whether the finding of adverse possession is maintainable even though Ramalingam Asari and Paramasiva Thevar were not examined? 8. Very elaborate arguments were advanced before me by both sides. Mr.A.Ramanathan, learned counsel for the appellants raised the following points and the decisions relied on by learned counsel are also listed below:- (A) The suit was very much within the period of limitation in terms of Article 59 of the Limitation Act, the present suit having been filed within three years from the date of the decree dated 3.2.1983 or even from 27.3.1982 when the plaintiff was set ex parte, the present suit having been filed on 14.9.1984. (B) The counsel for the second defendant in the earlier suit having reported no instructions, fresh notice ought to have been sent before the party was set exparte. (1) Malkiat Singh & Anr. v. Joginder Singh & Ors. JT. 1997 (9) S.C. 642. (ii) Tahil Ram v. Ramchand, 1993 Supp. (3) S.C.C. 256 (C) The suit to set aside ex parte alleging fraud and illegality was maintainable even without resorting to the provisions under Order 9, Rule 13, C.P.C. (i) Radha Raman Shaha v. Pran Nath Roy, I.L.R. 28 Cal. 475 (P.C.) (ii) Khagendra Nath Mahata v. Pran Nath Roy, I.L.R. 29 Cal. 395 (P.C.). (D) In O.S. No. 872 of 1981, while disposing of the same on merits, while the suit was decreed exparte against the second defendant, the suit was dismissed against the first defendant, the purchaser, on merits. 475 (P.C.) (ii) Khagendra Nath Mahata v. Pran Nath Roy, I.L.R. 29 Cal. 395 (P.C.). (D) In O.S. No. 872 of 1981, while disposing of the same on merits, while the suit was decreed exparte against the second defendant, the suit was dismissed against the first defendant, the purchaser, on merits. Whatever reasons which ' were given dismissing the suit against the first defendant was equally applicable to the second defendant also, but the Courts below without giving any reasons decreed the suit against the second defendant only on the ground that he chose to remain ex parte. Under Order 8, Rules 5 and 10 C.P.C. though the Court is entitled to pronounce judgment against defendants who had not filed written statement, such pronouncement has to be on a consideration of the merits of the suit claims. Disposal without giving reasons for justifying the grant of decree cannot be sustained. (i), Krishna Devi v. Raj Kumar, A.I.R. 1986 Raj. 72 (ii) K.Bhagavan-thu v. K.Maraiah, A.I.R. 1981 A.P. 414 (iii) Abubacker v. South Indian Bank Ltd, A.I.R. 1969 K.L.T. 57 (iv) Swaran Lata Ghosh v. H.K.Banerje, 1969 (3) S.C.R. 976 (v) Sudha Devi v. M.P .Narayanan, 1988 (3) S.C.C. 366 (vi)Modula IndiavKamak-shya Singh Deo, A.I.R. 1989 S.C. 162 (vii) M.P.Narayana v. Sudhadevi, A.I.R. 1986 Cal. 256 (E) The possession of the property by the appellants having been found against the Courts below but the Courts below on the basis of the circumstances that a decree has been passed against the second appellant in O.S. No. 872 of 1981, had held that the decree thus granted would affect the claim of adverse possession by the second appellant. This finding is illegal and the adverse nature of the possession by the second defendant will not be affected merely because there was a decree against him. (i) Singara Velu Mudaliar v. Chokkalinga Mudaliar, I.L.R. 46 Mad. 525 (ii) Dagadabai v. Sakharah, A.I.R. 1948 Bom. 149 (iii) Lalji Jeth v. Kalidas Devchand, 1967 (1) S.C.R. 873 . (iv)Mulchand v. Hirabai, A.I.R. 1930 Bom. 400. (F) The contention of the respondents that the present suit was barred by res judicata by the decision in O.S. No. 872 of 1981 was erroneously accepted by the Courts below. 525 (ii) Dagadabai v. Sakharah, A.I.R. 1948 Bom. 149 (iii) Lalji Jeth v. Kalidas Devchand, 1967 (1) S.C.R. 873 . (iv)Mulchand v. Hirabai, A.I.R. 1930 Bom. 400. (F) The contention of the respondents that the present suit was barred by res judicata by the decision in O.S. No. 872 of 1981 was erroneously accepted by the Courts below. The test of res judicata is only as regards the identity of title of actual property in the two litigations and not the identity of the property involved in two cases. (i) Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 . (G) The Courts below held that in pleading for title and setting up adverse possession, the plaintiff was putting forward inconsistent pleas and hence cannot maintain such prayers. The said view expressed by the Courts below is wrong and it is open to the plaintiffs to plead alternate reliefs. Srinivas Ram Kumar v. Mahabir Prasad others., 1951 S.C.R. 277 (H) The main issue before the Courts below being whether the earlier decree setting the second appellant exparte is sustainable or not, was not properly considered at all. (I) The case of the plaintiff/appellant and their evidence were not contradicted by either oral or documentary evidence. Yet, the Courts below had rendered the findings against the plaintiff without any evidence. 9. Therefore, according to learned counsel the judgment and decree of both the Courts below are liable to be set aside. 10. Per contra, Mr.Srinivasa Raghavan learned counsel for the respondents contends as follows:- (A) The findings rendered by the Courts below on all issues are the concurrent findings of fact which cannot be interfered with under Section 100, C.P.C. (B) The correctness of the earlier decree cannot be challenged collaterally in a subsequent suit and the earlier decree could have been set aside only by an appeal or revision or a petition to set aside exparte decree and not by a subsequent suit. There is no allegation of fraud by the plaintiff/appellant. (i) Amar Singh v. Chhajju, A.I.R. 1928 Lah. 766 (ii) Thiruvengadam Mammad v. Chathamkara Ammad, AIR. 1929 Mad. 89 (iii) Vasudevaru v. Raman Pillai, AIR 1963 Ker. 217 (iv) P.Ambrose v. P.N.B.Tanjored, 1997 (II) C.T.C. 672 (C) The plea of adverse possession and title are contradictory and cannot stand together. There is no allegation of fraud by the plaintiff/appellant. (i) Amar Singh v. Chhajju, A.I.R. 1928 Lah. 766 (ii) Thiruvengadam Mammad v. Chathamkara Ammad, AIR. 1929 Mad. 89 (iii) Vasudevaru v. Raman Pillai, AIR 1963 Ker. 217 (iv) P.Ambrose v. P.N.B.Tanjored, 1997 (II) C.T.C. 672 (C) The plea of adverse possession and title are contradictory and cannot stand together. The plea of adverse possession has to be pleaded with certainty and proved to hilt Nagarajan v. Rajamani Iyer and ors, 1999 (I) C.T.C.428 (D) The admissions made by Seeniammal as P.W.1 in the earlier suit cannot be relied upon as she is a rustic person and is not a party to the present suit and such admissions cannot confer any title on the plaintiffs. (E) The evidence of Seeniammal has not been marked in evidence in the present suit and the plaintiff cannot rely on the observations contained in the earlier judgment. Observations in the judgment are not admissible in evidence. (F) The objection as regards Order 8, Rule 5 and 10, has been taken for the first time only In the course of argument in the Second Appeal and hence no permissible to be raised. (G) As regards the reason given by the plaintiff for setting aside the ex parte decree, he has not pleaded that he was not aware of the date of hearing. The principle that fresh notice should go to the party on the withdrawal of the appearance by the counsel is applicable only when the party pleads that he was not aware of the date of hearing. Reference is made to the judgment of the Supreme Court in A.I.R.1993 S.C. 1182: 1993 (Supp) (3) S.C.C.256 (H) The withdrawal of C.M.A. No. 15 of 1983 as against the dismissal of the application filed by the plaintiff under Order 9, Rule 13 C.P.C. is conclusive as regards the right of the plaintiff to have the decree in O.S. No. 872 of 1981 set aside. The plaintiff not having pursued C.M.A. on merits cannot maintain the same prayer. (I) Long possession is not sufficient for adverse possession unless there is animus and hostile assertion. (i) S.M. Karimv. Bibi Sakina, A.I.R.1964 S.C. 1254; (ii) Anna Saheb Bapusaheb Patil v. Balwant Babusaheb Patil, A.I.R.1995 S.C. 895 11. Therefore, according to learned counsel for the respondents the plaintiff has not made out a case for setting aside the earlier decree. (I) Long possession is not sufficient for adverse possession unless there is animus and hostile assertion. (i) S.M. Karimv. Bibi Sakina, A.I.R.1964 S.C. 1254; (ii) Anna Saheb Bapusaheb Patil v. Balwant Babusaheb Patil, A.I.R.1995 S.C. 895 11. Therefore, according to learned counsel for the respondents the plaintiff has not made out a case for setting aside the earlier decree. On the question of title also the plaintiffs have not established either title or adverse possession and hence the judgment of the Courts below have to be confirmed. 12. Having regard to the nature of the dispute between the parties hereto and the manner in which both the Courts below have dealt with the issues, I had spent considerable time to analyse the facts and circumstances under which and as well as the decision was rendered in O.S. No. 872 of 1981 which are inter-connected with the disposal of this second appeal. The scope of the present suit is mainly two fold namely, (i) whether the decree in O.S. No. 872 of 1981 as against the second plaintiff/appellant herein was liable to be set aside; whether the appellants are entitled to a decree for declaration and injunction. 13. The main allegations which are putforth for setting aside the earlier decree are that the second plaintiff (second defendant in the earlier suit was informed by his advocate that he would intimate the date of hearing to the party after filing Vakalath and he was not informed about the further stages in the appeal. It is further alleged that he was informed by the first defendant in the suit that he has already deleted the third defendant from the suit and that he will not pursue the suit against him and also that the plaintiff believed the statement of the first defendant. Therefore, according to the plaintiff, he was deceived and the decree had been obtained by fraud. These allegations are of course, denied by respondents. 14. The manner in which in the present suit containing serious allegations had been faced by the defendants and the manner In which the Courts below have rejected the said allegations are totally unsatisfactory. It is very curious that the first defendant against whom the said allegations had been made did not render any evidence and choose to keep out of the witness box. It is very curious that the first defendant against whom the said allegations had been made did not render any evidence and choose to keep out of the witness box. The evidence of P.W.1 as regards the mental incapacity of the second plaintiff during the relevant period of time and the evidence of the second plaintiff himself who has examined himself as P.W.2, explaining the circumstances under which the decree was passed are totally uncontradicted. In the cross-examination, their evidence has not been discredited in any manner as far as the said issues are concerned. The defendants in their written statements had chosen to take the extreme stand by denying even the fact that the second plaintiff was a mentally unsound person during the relevant point of time. As stated earlier as regards the allegation of fraud neither the first defendant nor any one chose to depose in order to rebut the allegations of the plaintiff. As regards the mental unsoundness of the second plaintiff during the relevant point of time, a perusal of the judgment in O.S. No. 872 of 1981 (Ex.A.1) clearly shows that Seeniammal, the eldest member of the defendants' family who is one of the plaintiffs in the earlier '.suit alongwith the defendants/respondents herein, had categorically admitted that the second plaintiff was mentally unsound. It is true that as contended by learned counsel for the respondents, in the absence of the evidence of the witness in the earlier suit being marked in evidence, the mere observations in the judgment in the earlier suit will not be admissible. The judgment is only a proof of fact that a judgment had been delivered on that date or its legal consequences and not of the observations contained in the judgment. But it is settled proposition of law that to this principle there are however, certain exceptions. For instance, reference in the earlier judgment as regards family pedigree, genealogy table, the findings on custom and practice etc. are admissible in evidence. Similarly, it has also been held that the admissions made by the party and referred to in the previous judgment are also admissible in evidence, more so when the earlier proceeding is also inter-parties vide the following judgments:- (i) Krishnasami Ayyangar v. Rajagopala Ayyangar, I.L.R. 18 Mad. 73 (D.B.) (ii) Collector of Gorakhpur v. Ram Sundar, A.I.R. 1934 P.C. 157 (iii) Ramaswami Goundan v. Subbaraya Goundan, A.I.R.1948Mad.388. 15. 73 (D.B.) (ii) Collector of Gorakhpur v. Ram Sundar, A.I.R. 1934 P.C. 157 (iii) Ramaswami Goundan v. Subbaraya Goundan, A.I.R.1948Mad.388. 15. At any rate, even without reference to the admissions made in the earlier suit and dealt with in the earlier judgment as mentioned above, even otherwise the evidence of P.Ws.l and 2 as regards the mental unsoundness of the second plaintiff at the relevant point of time and the circumstances under which the ex parte decree was passed against him and the alleged fraud played as against him by the first defendant are completely uncontradicted and by total absence of any rebuttal evidence on the side of the respondents, It only leads to an obvious inference that the first defendant had deliberately kept himself away from the witness box to avoid cross-examination. Therefore, in the face of, uncontradicted testimony of the plaintiff, the findings of the Courts below to the contrary can be termed only as without any evidence. The burden of proof of fraud had been adequately discharged by the plaintiff and hence the findings of the Courts below cannot be sustained. As the said findings are not based on any evidence and by completely ignoring the available evidence of P.Ws.l and 2, this Court would be justified in setting aside the said findings under Section 100, C.P.C. 16. Even otherwise, it is seen that a counsel having filed Vakalath on behalf of the second plaintiff (second defendant in O.S. No. 872 of 1981) had withdrawn after reporting no instructions. On this aspect the decisions of the Supreme Court are very clear. In Malkiat Singh & Anr. v. Joginder Singh and others. JT. 1997 (9) S.C. 642, it was held that where the appellants' counsel had pleaded no instructions and the case was decided exparte, the Supreme Court held that the trial Court should have in the interest of justice held that the party cannot be said to be at fault and should have proceeded from the stage when the counsel reported no instructions. In the same judgment, reference was made to an earlier Judgment of the Supreme Court reported in TahilRam v. Ramchand, 1993 Supp. (3) S.C.C. 256 In the earlier judgment also the Supreme Court held that when the counsel withdrew his appearance while the petitioner was absent, it was held that fresh notice ought to have been sent to the parties. 17. (3) S.C.C. 256 In the earlier judgment also the Supreme Court held that when the counsel withdrew his appearance while the petitioner was absent, it was held that fresh notice ought to have been sent to the parties. 17. This judgment is sought to be distinguished by learned counsel for the respondents by referring to the circumstance that there was nothing on record to show that the petitioner had notice of the date of hearing and that in the present case, the plaintiff had not stated that he had no notice of hearing. I am unable to accept the contentions of learned counsel for the respondents. In the affidavit filed in support of the petition to set aside the exparte decree, the plaintiff has clearly stated that his counsel had informed him after filing the Vakalath to intimate the further date of hearing. In the plaint, in the present suit he has also stated that in view of the representations of the first defendant that he will not proceed against the plaintiff he had believed him and did not attend the Court. During the relevant period he was completely out of mental control and was mentally unsound. To the same effect he has deposed in his evidence also. 18. Further more, the Courts below ought to have appreciated that the plaintiff had approached the Court with a petition under Order 9, Rule 13 C.P.C. just on the completion of a month after passing of the decree and there was no question of any inordinate delay or lapses on the part of the plaintiff 'in seeking to set aside the decree. 19. The further objections of the learned counsel for the respondents that the plaintiff should have pursued C.M.A. No. 15 of 1983 on the file of the Sub Court, Srivilliputhur, being an appeal against the order of dismissal of the petition under Order 9, Rule 13, C.P.C. cannot also be sustained.' Under Section 44 -of the Evidence Act, it is open to a party to plead that any judgment or order or decree was proved to have been obtained by fraud or collusion. In fact, in the very same decision relied on by learned counsel for the respondents in Vasudevaru v. Raman Pillai, A.I.R.1963 Ker. In fact, in the very same decision relied on by learned counsel for the respondents in Vasudevaru v. Raman Pillai, A.I.R.1963 Ker. 217, the Kerala High Court held that Section 44 of the Evidence Act entitles the aggrieved party-to challenge decrees and judgments in collateral proceedings on grounds of fraud or collusion. Moreover, the endorsement made on C.M.A. No. 15 of 1983 is a joint endorsement which is as follows;- "In view of the fact that a relief to set aside the ex parte decree is asked for in the suit in O.S. No. 421 of 1984, District Munsif, Court,, Srivilliputhur, the parties to the appeal agreed to settle the issue in the suit. Hence, the appeal is withdrawn .as not pressed and the parties to bear their own costs."The above Joint endorsement has been signed by counsel representing both sides. Therefore, the respondents herein cannot be heard to say that the plaintiff ought to have pursued the Civil Miscellaneous Appeal and ought not to seek for setting aside the decree in the present suit. 20. As far as the allegations of learned counsel for the appellant that the Judgment in O.S. No. 872 of 1981 do not conform to Order 8, Rules 5 and 10, CPC and that no reasons have been given in the judgment for decreeing the suit as against the second defendant on merits is concerned, I agree that there is some basis for the said objection having regard to the circumstance that the judgment does not discuss the claims of the plaintiff in that suit as against the second defendant. The decree against the second defendant has been granted mainly due to the circumstance that he had chosen to remain exparte and thus the judgment does not satisfy the essential requirements of a valid judgment in the background of the various decisions cited by learned counsel for the appellant. However, as pointed out by learned counsel for the respondents having regard to the fact that this ground had not been raised as a substantial question of law either in the original grounds or as additional grounds of appeal, it is not possible to permit the said ground/ to be raised for consideration in this Second Appeal. 21. However, as pointed out by learned counsel for the respondents having regard to the fact that this ground had not been raised as a substantial question of law either in the original grounds or as additional grounds of appeal, it is not possible to permit the said ground/ to be raised for consideration in this Second Appeal. 21. Therefore, I am fully convinced that the decree passed against the second defendant in O.S. No. 872 of 1981 and the second appellant in the present Second Appeal is illegal and void, is liable to be set aside as a result of the contradicted testimony of the plaintiffs as regards the circumstances under which ex parte decree had been passed. It has to be borne in mind that. in the interest of justice, it is difficult to ignore that the second plaintiff was a mentally unsound person during the relevant point of time and even otherwise he had approached the Court to set aside the exparte decree just on completion of one month of passing of the decree. Therefore, in the interest of justice the decree as against the second plaintiff in O.S. No. 872 of 1981 is liable to be set aside. 22. As regards the merits of the prayer for declaration and injunction is concerned, it is seen ,that some of the findings rendered in O.S. No. 872 of 1981 subsequently, concluded in S.A. No. 1799 of 1985 are bound to have effect on the issues arising consideration in the present suit. Since the said suit was pending either by way of appeal or second appeal both parties had no opportunity to pursue their grounds as would be available to them pursuant to the decision in O.S. No. 872 of 1981. 23. Further I also find that one of the grounds raised by the plaintiffs/appellants also in the present suit, is that they have perfected title by adverse possession. The trial Court had not bothered to raise any issue in the said context. The manner in which the appellate Court had framed the point for consideration leads much to be said as regards the minimal requirements under Order 41, Rule 31, C.P.C. The only point for consideration as framed by the appellate Court is that whether the judgment of the trial Court was liable to be set aside and whether there are reasons for allowing the appeal. Neither the issue as regards the tenability of the prayer .to set aside the decree in the earlier suit, nor the question of title as pleaded by both parties, nor the question of adverse possession as pleaded by the appellants was framed as point for consideration. This itself would be a sufficient ground for setting aside the judgment of both the Courts below. The entire concentration appears to have been only on the issue as to whether the decree was liable to be set aside or not. Neither in the context of the points arising for consideration on the question of setting aside the decree in the earlier suit nor on the question of title or possession of the properties, the defendants/respondents have not only failed to let in oral evidence, but have also not produced any documentary evidence to prove their title or possession. Only four exhibits have been filed by them and they relate to the copy of the affidavit filed by the second plaintiff-in support of his petition under Order 9, Rule 13, C.P.C., the appeal memorandum in C.M.A. No. 15 of 1983 and the fair and final order in C.M.A. No. 15 of 1983. No other document or oral evidence had been let in on any of 'the issues which arose for consideration as against the positive evidence of P.Ws.l and 2 on the side of the appellants and other exhibits filed on their side to prove their title and possession. 24. In this background, there is no other alternative except to remit the appeal or reconsideration on the merits of the mutual claims as regards title and adverse possession. In the interest of justice both parties have to be provided with proper opportunity to substantiate their claims. In this background I do not propose to deal with any of the issues raised by both learned counsel touching on the question of merits of the plea of title and adverse possession. The result of setting aside the decree in O.S. No. 872 of 1981 and the remanding this second appeal would be as follows:- (i) The decree in O.S. No. 872 of 1981, in so far as it is against the second defendant (second plaintiff in this suit) is set aside and remanded for retrial. The second defendant in that suit will file his written statement and the trial Court shall proceed from that stage. The second defendant in that suit will file his written statement and the trial Court shall proceed from that stage. (ii) Second Appeal No.857 of 1996 is allowed and consequently, O.S. No. 421, of 1984 shall be tried along with O.S. No. 872 of 1981 by providing proper opportunity to both parties to adduce fresh evidence, oral and documentary and the suits be disposed of in accordance with law. 25. The trial Court is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this judgment alongwith the records. The parties to appear before the trial Court on 13.3.2000.