Judgment :- 1. This Second Appeal arises out of the Judgment in A.S.No.41/1992 reversing the Judgment of the trial court in O.S.No.248/1989 and thereby decreeing the Plaintiffs suit for Partition. Unsuccessful 1st Defendant is the Appellant. For convenience, the parties are referred as per their array in the suit. 2. The suit property and other properties originally belonged to one Irulappa Thevar. Genealogy of the said Irulappa Thevar is as under:- First Defendant entered into sale agreement with Palaniappan in respect of the suit property. First Defendant had filed suit against Palaniappan in O.S.No.224/1993 for Specific Performance of agreement for sale. After getting decree against Palaniappan, 1st Defendant Muthusamy filed E.P.No.191/1986 and obtained sale deed through court. 3. The case of the Plaintiff is that the suit property was not allotted to Palaniappan in entirety and that Palaniappan had right to sell only ¼th share of the suit property. According to the Plaintiff, she purchased the share of Rangasamy Thevar and his son Irulappa Thevar in 1983 under Ex.A5 sale deed dated 112. 1983. Stating that the Plaintiff did not know about the agreement of sale in favour of the first Defendant by Palaniappan and that she came to know about it only at the time of execution proceedings, Plaintiff had filed Petition under Or.21, R.99(1),100 and 101 C.P.C. raising objection for delivery of possession. Executing court dismissed that Petition. Appeal preferred by the Plaintiff before Sub-Court, Udumalpet in C.M.A.No.19/1987 was also dismissed. While dismissing C.M.A.No.19/1987, the Appellate court observed that the Plaintiff could work out her remedies by way of a regular suit. Accordingly, Plaintiff filed the suit for partition. 4. Denying plaint averments, 1st Defendant has filed written statement contending that the entire suit property was allotted to Palaniappan and that he has also perfected his title by way of adverse possession and the other sharers did not object to the absolute right of Palaniappan in the suit property at any time. Since, Palaniappan declined to execute sale deed, 1st Defendant filed O.S.No.224/1983 and obtained exparte decree for Specfic Performance by decree dated 25.07.1983. Thereafter, 1st Defendant filed E.P.No.191/1986 and obtained sale deed through the court as well as possession. As the 1st Defendant is a bonafide purchaser for value, Plaintiff has no right to object the same. Since, Palaniappan declined to execute sale deed, 1st Defendant filed O.S.No.224/1983 and obtained exparte decree for Specfic Performance by decree dated 25.07.1983. Thereafter, 1st Defendant filed E.P.No.191/1986 and obtained sale deed through the court as well as possession. As the 1st Defendant is a bonafide purchaser for value, Plaintiff has no right to object the same. According to the Defendants the order in execution proceedings has become final and the present suit is barred by principle of res-judicata. 5. On the above pleadings necessary issues were framed. Trial court held that the Plaintiff has not chosen to contest the earlier proceedings and that the Plaintiff had obtained sale deed from Rangasamy Thevar and Irulappa Thevar only after the decree for Specific Performance and therefore Plaintiff cannot claim right on the basis of Ex.A5 sale deed and on those findings, trial court dismissed the Plaintiffs suit. 6. In the appeal preferred by the Plaintiff, lower Appellate court held that there was no document showing that Palaniappan was allotted the suit property. Lower Appellate court further held that if really the suit property was so allotted to Palaniappan, Rangasamy Thevar and Irulappa Thevar could not have sold their half share to the Plaintiff. Lower Appellate court held that the Plaintiff being a bonafide purchaser for value from two sharers is entitled to get half share in the suit for Partition. Lower Appellate court took the view that the earlier proceedings in E.P.No.161/1986 and dismissal of the objection Petition filed by the Plaintiff would not amount to res-judicata. On those findings, lower Appellate court reversed the Judgment of the trial court and allowed the appeal preferred by the Plaintiff. 7. Being aggrieved against the findings of the lower Appellate court, Appellant/1st Defendant has preferred this Second Appeal. On those findings, lower Appellate court reversed the Judgment of the trial court and allowed the appeal preferred by the Plaintiff. 7. Being aggrieved against the findings of the lower Appellate court, Appellant/1st Defendant has preferred this Second Appeal. The following substantial questions of law were formulated for determination in the Second Appeal: 1) When the son of Rangasamy Thevar and brother of Palaniappan had admitted that neither his father nor his brother Irulappa Thevar had any title right and interest in the suit property as it was given exclusively to Palaniappan the vendor of the 1st defendant and as such no one had right title and interest in the entire suit property except Palaniappan the vendor of the 1st defendant whether the lower Appellate court is correct is granted a decree for partition in favour of the Plaintiff which is contrary to the evidence on record. 2) When Rangasamy Thevar and his son had neither questioned or challenged the title, right of Palaniappan in the earlier suit filed by the 1st defendant against Palaniappan for specific performance whether the Plaintiff who is claiming her right through Rangasamy Thevar and his son Irulappa Thevar is not estopped from claiming half share in the suit properties. 8. Challenging the impugned findings, Mr. V. Nicholas, the learned counsel for the Appellant/1st Defendant contended that Executing court has already recorded a finding that the sale deed in favour of the Plaintiff is invalid and when E.A.No.2173/1986 and C.M.A.No.19/1987 were dismissed and those findings against the Plaintiff had become final and the suit for partition filed by the Plaintiff is barred by res-judicata. The learned counsel for the Appellant/1st Defendant further contended that the first Defendant having obtained a valid decree in O.S.No.224/1983 and also got the sale deed executed through Court proceedings, his right cannot be defeated. The learned counsel for the Appellant would further submit that in view of Or.21, Rule 101 C.P.C., Plaintiff cannot maintain a separate suit and the suit is barred by res-judicata. 9. Countering the arguments, Mr. S. Vasudevan, the learned counsel appearing for the first Respondent submitted that in C.M.A.No.19/1987, the Appellate court has observed that Plaintiff can establish her right by filing a separate suit and therefore, there is no question of res-judicata. 9. Countering the arguments, Mr. S. Vasudevan, the learned counsel appearing for the first Respondent submitted that in C.M.A.No.19/1987, the Appellate court has observed that Plaintiff can establish her right by filing a separate suit and therefore, there is no question of res-judicata. Supporting the findings of the lower Appellate court, the learned counsel for the first Respondent further contended that in the absence of acceptable evidence for proving partition and allotment of suit property to Palaniappan, lower Appellate court rightly reversed the Judgment of the trial court and the well considered Judgment of the lower Appellate court warrants no interference. 10. It is not in dispute that on the basis of the agreement of sale executed by Palaniappan in favour of 1st Defendant, 1st Defendant had filed O.S.No.224/1983 and has obtained a decree for Specific Performance by the decree dated 25.07.1983. Plaintiff had purchased half share in the suit property from Rangasamy Thevar and Irulappa Thevar under Ex.A5 sale deed dated 112. 1983. First Defendant had filed E.P.No.191/1986 for execution of sale deed and also for taking delivery of possession of the suit property. In the execution proceedings, Plaintiff has filed E.A.No.2173/1986 under Or.21, Rule 99(1) and 100, 101 C.P.C. and Sec.151 C.P.C. for re-delivery of half share to the Plaintiff. That Petition was dismissed by the Executing court by order dated 02.03.1987 (Ex.A2). Executing court has observed that the Plaintiff has colluded with Palaniappan and in collusion, Plaintiff had obtained sale deed from the brother and father of Palaniappan. E.A.No.2173/1986 was filed under Or.21, R.99(1), 100 and 101 C.P.C. praying that possession given to the 1st Defendant in E.P.No.191/1986 is not valid in law and to direct him to re-deliver possession of half share to the Plaintiff. As against the dismissal of the Petition in E.A.No.2173/1986, Plaintiff has filed C.M.A.No.19/1987. The Appellate court held that Plaintiff had not proved to be in possession of the suit property and therefore, she cannot seek for the relief of redelivery of possession of half share. However, the Appellate court has observed that Plaintiff can establish her right by filing a separate suit. 11. First plea raised by the Appellant is that in view of dismissal of E.A.No.2173/1986, the suit filed by the Plaintiff is barred by res-judicata. However, the Appellate court has observed that Plaintiff can establish her right by filing a separate suit. 11. First plea raised by the Appellant is that in view of dismissal of E.A.No.2173/1986, the suit filed by the Plaintiff is barred by res-judicata. The learned counsel for the Appellant further argued that since all the questions have already been decided in the said Petition, the said order will operate as res-judicata. 12. The learned counsel for the Appellant contended that under Or.21, Rule 101 C.P.C. all questions arising between the parties to a proceeding on an application under Or.21, Rule 99 C.P.C. shall be determined by the Court only in that application and shall not be determined by a separate suit and therefore, dismissal of E.A.No.2173/1986 will operate as res-judicata. In support of his contention, the learned counsel for the Appellant placed reliance upon AIR 2002 SC 251 (N.S.S. Narayana Sarma and others v. M/s. Goldstone Exports (P) Limited and others) and AIR 1998 Karnataka 186 (FB) (V.K.Rama Setty v. A. Gopinath). 13. Or.21, Rule 101 C.P.C. reads as follows:- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 of Or.21 C.P.C. or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such question. 14. All questions arising on the application for removal of obstruction have to be decided by the Executing court itself. The main point urged is under Rule 101 of Or.21 C.P.C. executing court has jurisdiction to decide all questions of title and the Plaintiff having opted to file application under Or.21, Rule 99(1) and Rule 101 C.P.C., she cannot maintain a separate suit. 15. The main point urged is under Rule 101 of Or.21 C.P.C. executing court has jurisdiction to decide all questions of title and the Plaintiff having opted to file application under Or.21, Rule 99(1) and Rule 101 C.P.C., she cannot maintain a separate suit. 15. Observing that it would be mandatory of the court to dispose the application filed under Or.21, Rule 99 (1) C.P.C. in accordance with the provisions of Or.21, Rules 100 and 101, in AIR 1998 Karnataka 186 (FB) (V.K.Rama Setty v. A.Gopinath) Full Bench of Karnataka High Court has held as follows:- "Keeping in view the language employed in O.21, R.99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under R.99 the use of word may gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. In the instant case, the respondent had filed application under O.21, R.99 of the C.P.C. Once such an application is filed it is mandatory on the part of the Court as provided under sub-rule (2) of R.99, to dispose of the same in accordance with the provisions contained in R.100 and 101 of O.21 of the C.P.C. as noticed above. It is further of importance to note that once an application is filed by the aggrieved person under R.97 or 99 then R.101 in an unambiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and interest in the property....." 16. Analyzing the import of the said provisions in Noorduddins case (1994 AIR SCW 5093) (supra), the Supreme Court in para 8 has held that:- "8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution." 17. In the present case, Plaintiff had filed application under Or.21, Rule 99(1), 100 and 101 C.P.C. Placing reliance upon the above cited decision, the learned counsel for the Appellant mainly contended that once such an application was filed and the court has disposed of the same in accordance with the provisions contained under Or.21, R.100 and 101 C.P.C., Plaintiff cannot file a separate suit. 18. In E.A.No.2173/1986, Plaintiff has averred that she has purchased half share from Rangasamy Thevar and Irulappa Thevar and she was put in possession of half share and she was dispossessed of the said half share and she prayed for restoration of the portion which she was dispossessed. In C.M.A.No.19/1987, the Appellate court has said that the Plaintiff has not shown her possession and therefore, no order could be passed in the application filed by the Plaintiff in the Execution Petition. However, the Appellate court held that the Plaintiff can establish her right by filing a separate suit. 19. As held by the Supreme Court in AIR 2002 SC 251 (N.S.S.Narayana Sarma and others v. M/s. Goldstone Exports (P) Limited and others) all relevant issues arising in the matter on an application under Or.21, Rule 97 and Rule 99 shall be determined by the executing court and not by a separate suit. In the present case all the questions arising between the parties could not have been tried in E.A.No.2173/1986, since the other sharers namely Rangasamy Thevar and Irulappa Thevar, and Anga Thevar were not parties in the execution proceedings. In the present case all the questions arising between the parties could not have been tried in E.A.No.2173/1986, since the other sharers namely Rangasamy Thevar and Irulappa Thevar, and Anga Thevar were not parties in the execution proceedings. In the execution proceedings only the 1st Defendant and Plaintif (purchaser of half share) and 1st Defendants vendor Palaniappan alone were parties. Other sharers were not parties. Subbiah Thevar who purchased ¼th share from Angu Thevar was also not a party to the execution proceedings. The issues arose for determination in the execution proceedings was whether there was a partition effected in the family and how much share was allotted to the sons of Rangasamy Thevar in the suit property. Since, other sharers were not parties in the execution proceedings, in C.M.A.No.19/1987, the lower Appellate court has rightly observed that Plaintiff can establish her right by filing a separate suit. 20. Under Or.21, R.101 C.P.C. all questions relevant to the application is to be determined by the executing court. The question which the executing court is obliged to determine under R.101 must possess two adjuncts .(i) such questions should have legally arisen between the parties; and .(ii) such questions must be relevant for consideration and determination between the parties. 21. Though the question whether the vendor of 1st Defendant had right to enter into agreement of sale in respect of entire property and whether the said agreement is valid only to the limited extent of Palaniappan and whether relevant issues to be determined. Those relevant issues could not have been determined since the other sharers were not parties in the execution proceedings. In C.M.A.No.19/1987, the Appellate court had no other option except to make an observation that Plaintiff can establish her right by filing a separate suit. The earlier proceedings in E.A.No.2173/1986 and C.M.A.No.19/1987 and the findings thereon will not amount to res-judicata and the substantial question of law is answered accordingly. 22. Admittedly, the suit property is the ancestral property of Rangasamy Thevar and his three sons. In the family partition effected amongst the brothers of Rangasamy Thevar under Ex.A1 partition deed dated 09.08.1948, Rangasamy Thevar was allotted to the suit property. Plaintiff has purchased half share from Rangasamy Thevar and Irulappa Thevar under Ex.A5 sale deed dated 112. 1983. According to the 1st Defendant, in the family partition, entire suit property was allotted to Palaniappan. In the family partition effected amongst the brothers of Rangasamy Thevar under Ex.A1 partition deed dated 09.08.1948, Rangasamy Thevar was allotted to the suit property. Plaintiff has purchased half share from Rangasamy Thevar and Irulappa Thevar under Ex.A5 sale deed dated 112. 1983. According to the 1st Defendant, in the family partition, entire suit property was allotted to Palaniappan. No evidence was adduced showing how the family properties were partitioned and what were the other items of property that fell to the sharers of other co-parceners. 23. The suit propertybeing joint family property of Rangasamy Thevar and his three sons were each entitled to 1/4th share. According to the Appellant/1st Defendant in the family properties, Palaniappan was allotted to the entire suit property. Onus of proof lies upon the 1st Defendant to prove that in the family partition, suit property was allotted to Palaniappan and that Palaniappan had right to convey the entire property. In fact in the proceedings in E.A.No.2173/1986, Palaniappan himself has appeared as witness and has stated that in the family partition effected, he was entitled to only ¼th share. His evidence is strengthened by the fact that another brother Subbiah Thevar had sold his share to 2nd Defendant Aruchamy Nadar. The vendor of the 2nd Defendant namely Subbiah Thevar was examined as D.W.2 and he had deposed about the family partition and allotment of ¼th share to him. 24. When Rangasamy Thevar and his sons are each entitled to ¼th share in the family properties, 1st Defendant has not adduced evidence showing that the entire suit property was allotted to Palaniappan. Trial Court proceeded under presumptive footing that Palaniappan was allotted the entire suit property. Trial court also erred in observing that the Plaintiff herself must have been aware of the agreement of sale and the decree in O.S.No.224/1983 in favour of the 1st Defendant. Of course, Plaintiff is none other than the sister of wife of 1st Defendant. Plaintiff might have been aware of the agreement. But it does not mean that the Plaintiff was also aware of the decree for Specific Performance in O.S.No.224/1983. Since the decree in O.S.No.224/1983 was an exparte decree, Plaintiff may or may not be aware of the same. Of course, Plaintiff is none other than the sister of wife of 1st Defendant. Plaintiff might have been aware of the agreement. But it does not mean that the Plaintiff was also aware of the decree for Specific Performance in O.S.No.224/1983. Since the decree in O.S.No.224/1983 was an exparte decree, Plaintiff may or may not be aware of the same. While so, trial court erred in observing that the Plaintiff was aware of the sale agreement and the decree in O.S.No.224/1983 and that Ex.A5 sale deed in favour of the Plaintiff was a conclusive one. The findings of the trial court are unsustainable. 25. Upon appreciation of evidence, lower Appellate court has rightly held that the 1st Defendant has not proved the partition in the family of Rangasamy Thevar and that the entire property was allotted to Palaniappan. The lower Appellate court was justified in holding that the earlier proceedings in E.A.No.2173/1986 in E.P.No.191/1986 would not amount to res-judicata. The Judgment of the lower Appellate court is well balanced and cannot be interfered with. 26. In the result, the Judgment of the lower Appellate court in A.S.No.41/1992 dated 09.01.1995 on the file of Subordinate Court, Udumalpet is confirmed and this Second Appeal is dismissed. No costs.