JUDGMENT 1. The appellants, who are the defendants 3 and 4 in the original suit filed this second appeal against the Judgment and decree passed in A.S.No.3 of 2003 dated 13.07.2004 on the file of Principal Subordinate Court, Erode reversing the judgment and decree made in O.S.No.251 of 1998 dated 26.06.2001 on the file of District Munsif cum Judicial Magistrate Court, Perundurai. 2. For the sake of convenience, the defendants 3 and 4 in the original suit are referred as appellants, the plaintiffs 1 to 6 in the original suit are referred as respondents 1 to 6, the 5th defendant in the original suit is referred as 7th respondent and the defendants 1 and 2 in the original suit are referred as respondents 8 and 9 hereafter. 3. The respondents 1 to 6 / plaintiffs originally filed a suit seeking a relief of mandatory injunction to remove the encroachment by their own expenses. Subsequently, during the pendency of the suit, the respondents 1 to 6 / plaintiffs amended the plaint and seeking relief of declaration that the alleged settlement deed executed by 7th respondent/5th defendant in favour of the 1st appellant / 3rd defendant is not binding on the plaintiffs and also seeking a relief of declaration that the portion where the road was laid, belongs to the plaintiffs and seeking the relief of recovery of possession of the above said encroached portion. 4. Briefly the case of the respondents 1 to 6 / plaintiffs is that the 1st respondent is the father of the respondents 2 to 6 and the suit property belongs to the respondents 1 to 6. The 7th respondent obtained a sale deed from the 1st respondent on 07.12.1982, in which, the 1st respondent executed a sale deed on his own and also on behalf of the minor children respondents 2 to 6. According to the respondents 2 to 6, the 7th respondent has not taken possession as per the above said sale deed and even after the sale, the respondents 1 to 6 were enjoying the property continuously. The respondents 2 to 6 filed a suit in O.S.No.820 of 1994 on the file of I Additional District Munsif Court against the 7th respondent seeking relief of injunction and obtained exparte decree on 30.03.1995. The respondents 2 to 6 filed a suit in O.S.No.820 of 1994 on the file of I Additional District Munsif Court against the 7th respondent seeking relief of injunction and obtained exparte decree on 30.03.1995. The respondents 2 to 6 have filed another suit in O.S.No.74 of 1995 for partition of their 5/6 share in the suit property and also seeking relief of permanent injunction against 7th respondent herein and obtained exparte preliminary decree on 16.08.1995. The respondents 2 to 6 also filed petition to pass final decree in I.A.No.491 of 1997 in the above said suit and in which, Advocate Commissioner was appointed and Commissioner's report was also filed and the above said proceedings pending. The respondents 1 to 6 put up a thatched house in the suit property and jointly enjoyed the same and the 1st respondent was paying house tax. The 7th respondent suppressing earlier two suits, he filed another suit on 25.10.1997 in O.S.No.262 of 1997 for the relief of permanent injunction against the respondents 1 to 6 and obtained interim injunction against the respondents 1 to 6 and the suit was pending on the date of filing this suit. It is also the case of the respondents 1 to 6 is that the 7th respondent had executed a settlement deed on behalf of villagers to the 1st appellant. Since the 7th respondent has no title over the suit property, the above said settlement deed is not binding on the respondents 1 to 6 and the above said document is forged document. On 12.12.1998, the appellants 1 and 2 and the respondents 7 to 9 encroached in the suit property by saying that they are going to lay road and therefore, the respondents 1 to 6 have given Police complaint. The Police has not taken any action and hence, this suit. 5. The 9th respondent filed a written statement and adopted by the 1st appellant and 8th respondent and it is averred that on representation of 50 residences of Adi Dravida Community families, Pallapalayam Panchayat Union constructed houses for those families 10 years back. The Police has not taken any action and hence, this suit. 5. The 9th respondent filed a written statement and adopted by the 1st appellant and 8th respondent and it is averred that on representation of 50 residences of Adi Dravida Community families, Pallapalayam Panchayat Union constructed houses for those families 10 years back. There is no proper approach road to go to their residence and therefore, the Panchayat passed a resolution No.113 dated 02.12.1998 and obtained fund of Rs.1,25,000/-from the Government under Swarna Jayanthi Nagar Rural Development Scheme given a proposal of metal road to Anna Colony from Erode South Main Road in order to lay a metal Road. As per the resolution, Panchayat obtained a registered gift deed dated 07.12.1998 in S.F.No.333 from the 7th respondent herein to an extent of 15 feet breath in new S.F.No.593/1, total extent of 8325 sq.ft. As per resolution of the panchayat, out of grand of Rs.1,25,000/-given by Government, a metal road was laid and completed and the same is used by the public. Further, the earlier proceedings stated in the plaint have no connections and they are not relevant. This suit is filed only to cause disturbance in the peaceful possession and enjoyment of the road by the public. Therefore, prayed for dismissal of the suit. 6. The 2nd appellant/4th defendant filed a separate written statement, in which, he adopted various averments stated in the written statement filed by the 1st appellant. In addition to the above said facts, the 4th respondent has also averred in the written statement that the 7th respondent purchased the property under registered sale deed dated 07.12.1982 from the 1st respondent and out of which, the 7th respondent executed a settlement deed in favour of the 1st appellant herein. Further, the respondents 1 to 6 sent a legal notice, suppressing all the facts and the earlier proceedings in the above said notice. The 1st appellant laid a metal road on 08.12.1998 and 09.12.1998 and completed the work on 12.12.1998 and 13.12.1998. The suit property was originally a barren land and it was given to the respondents 1 to 6 by Government as gift for cultivation and maintenance of the property on conditions and hence, the Government is entitled to take back the above said property. Further, the respondents 1 to 6 are also benefited in the above said road. The suit property was originally a barren land and it was given to the respondents 1 to 6 by Government as gift for cultivation and maintenance of the property on conditions and hence, the Government is entitled to take back the above said property. Further, the respondents 1 to 6 are also benefited in the above said road. The 1st respondent has sold the portion of a suit property to an extent of 10 cents in S.No.593/1 to one Kanaga Rathinam on 09.12.1985 under a registered sale deed but the above said fact was suppressed by the respondents 1 to 6 in the plaint. The above said Kanaga rathinam was also not impleaded as party in the suit. The respondents 2 to 6 fraudulently obtained exparte decree. Due to personal enmity against the 7th respondent, after received entire sale consideration, the 1st respondent instigated and filed the earlier proceedings. Further, before filing this suit, the above said road was laid and used by the public and therefore, the respondents 1 to 6 are not entitled to any relief. 7. From the above said pleadings, the trial court has framed six issues. On the side of the respondents 1 to 6 / plaintiffs examined two witnesses as PW1 and PW2 and marked 47 documents as Exs.A1 to A47 and on the side of the appellants one witness was examined as DW1 and marked six documents as Exs.B1 to B6. 8. Considering the above said oral and documentary evidence adduced on either side and the trial court has held that the 1st respondent executed a sale deed on 07.12.1982 itself on his behalf and also on behalf of his minor children respondents 2 to 6 and the respondents 1 to 6 have not taken any steps for more than 12 years to set aside the above said sale deed and therefore, the above said sale deed was validly executed for valuable consideration and from that date onwards, the 7th respondent is the owner of the property. The trial court has also held that the earlier proceedings (i.e.,) O.S.No.820 of 1994 and O.S.No.74 of 1995 are all filed by the respondents 1 to 4 as collusive suits belatedly and obtained exparte decree. Further, the trial court has held that another purchaser namely Kanagarathinam, who is purchaser of portion of the suit property was not impleaded in the suit. Further, the trial court has held that another purchaser namely Kanagarathinam, who is purchaser of portion of the suit property was not impleaded in the suit. The trial court has also held that in the earlier proceedings, the respondents 1 to 6 have claimed right over the extent of one acre 37 cents but the 7th respondent has purchased only one acre and another 10 cents was purchased by another person namely Kanaga rathinam. Therefore, the respondents 1 to 6 are entitled only 27 cents. The trial court has further held that the 7th respondent has gifted the property to 1st appellant / Panchayat to lay the road for public use and all the above said reasons, the trial court dismissed the suit. 9. Aggrieved over the above said findings of the trial court, the respondents 1 to 6 / plaintiffs preferred first appeal in A.S.No.3 of 2003. The first appellate court held that already the respondents 2 to 4, children of the 1st respondent filed a suit in O.S.No.820 of 1994 for permanent injunction against the 1st respondent, who is father of the respondents 2 to 6 and the 7th respondent and obtained exparte decree on 30.03.1995. Further, the respondents 2 to 6, children of the 1st respondent filed another suit in O.S.No.74 of 1995 and seeking relief of partition of 5/6 share in the suit property as against their father namely 1st respondent and the permanent injunction against the 7th respondent and the above said suit, exparte preliminary decree was passed and final decree proceedings pending. Further, the 7th respondent has filed another suit in O.S.No.262 of 1997 for permanent injunction against the respondents 1 to 6, and obtained interim injunction but later the above said suit was dismissed on 14.01.1999. But, even prior to the disposal of the above said suit (i.e.,) during pendency of the suit, the 7th respondent had executed a settlement deed in favour of the 1st appellant Panchayat to lay the road in respect of portion of the property and therefore, the above said settlement deed executed by 7th respondent is not valid in law. But, even prior to the disposal of the above said suit (i.e.,) during pendency of the suit, the 7th respondent had executed a settlement deed in favour of the 1st appellant Panchayat to lay the road in respect of portion of the property and therefore, the above said settlement deed executed by 7th respondent is not valid in law. Further, this Court has already directed in the writ petition W.P.No.863 of 1999 that the 1st respondent can lay a road only with permission from the owner of the property or acquired the property for laying road and therefore, the respondents 1 to 6 are entitled to the relief sought for in the above said suit and hence set aside the decree and judgment passed by the trial court and allowed the 1st appeal and decreed the suit as prayed for by the respondents 1 to 6. 10. Aggrieved over the above said reversal findings of the 1st appellate court, the appellants, who are the defendants 3 and 4 in the original suit preferred this second appeal. 11. The Second Appeal is admitted on the following substantial questions of law:- "In the face of the judgment in O.S.No.74/95, where the sale by the present first plaintiff (1st respondent) in favour of the present fifth defendant (7th respondent) was not even set aside, though it was attacked, would not the Appellate Court's judgment rendered against the appellants now be hit by the principles of res judicata when it was held that the present first plaintiff (1st respondent) had no right to execute the sale deed in favour of the present fifth defendant (7th respondent) ?" 12. Heard the learned counsels appearing for both sides and perused the materials available on record. 13. The respondents 1 to 6 have filed a suit in respect of the suit property (i.e.,) one acre in Old Sur.No.333 (4.20 acres) / New Sur.No.593/1 Punja hectare 1.70.00 and seeking relief of mandatory injunction to remove the encroachment by their own expenses and other reliefs. On the side of the respondents 1 to 6 they have not filed any documents to prove the title of the suit property except Ex.A1 alleged agreement of partition between 1st respondent and his brothers namely Chenni and Chengodan. On the side of the respondents 1 to 6 they have not filed any documents to prove the title of the suit property except Ex.A1 alleged agreement of partition between 1st respondent and his brothers namely Chenni and Chengodan. A perusal of the document revealed that all the three brothers were divided the entire property in Old S.No.333(New S.No.593/1 as 4.20 acres and each allotted 1 acre 37 cents and also allotted 37 cents each to their mother till her life time, on the north for using common path way and also allotted a portion for using cart track on the south. Except, the above said unregistered agreement, no other documents to prove that the respondents 1 to 6 are entitled to the suit property. Various documents filed by the respondents 1 to 6 are to prove the earlier proceedings and the revenue records like Adangal, Chitta, Kist etc. 14. It is not in dispute that the 1st respondent, who is the 1st plaintiff in the suit executed a registered sale deed, Ex.B1 dated 07.12.1982 on his own and also on his minor children, (i.e.,) the respondents 2 to 6 in respect of suit schedule property. It is not in dispute that in any one of the earlier proceedings, the respondents 1 to 6 have not seeking the relief to set aside the above said Ex.B1 sale deed as null and void and no Court has been granted the decree as the above said Ex.B1 sale deed is null and void. A perusal of the earlier proceedings revealed that the respondents 1 to 4 filed a suit in O.S.No.820 of 1994 in which only seeking relief of permanent injunction against the 7th respondent herein, and since the 7th respondent has not appeared, the above said suit exparte decree was passed and granted permanent injunction. The above said facts revealed from Exs.A2 to A4. After that the respondents 2 to 6, who are the sons of the 1st respondent filed a suit for partition in O.S.No.74/95 seeking a decree for partition of their 5/6 share in the suit property and also seeking relief for permanent injunction against the 7th respondent herein, not to interfere with the possession only in respect of 5/6 share of the respondents 2 to 6 herein. Since the above said suit, the father of the respondents 2 to 6 (i.e.,) the 1st respondent herein and also the 7th respondent have not appeared, an exparte preliminary decree was passed and to prove the same, the respondents 1 to 6 filed Exs.A5 to A7. 15. It is also revealed that the 7th respondent herein filed a suit in O.S.No.262/1997 as against the respondents 1 to 6 herein by stating that he purchased the suit property on 07.12.1982 and he was in possession of the suit property. Since the respondents 1 to 6, trying to interfere the possession over the suit property from 25.10.1997 onwards, suit was filed and seeking relief of permanent injunction. During the pendency of the said suit, the 1st appellant / Town Panchayat Executive Officer passed a resolution Ex.B4 on 02.12.1998 to lay a road from Erode to Sakthi Main Road to Anna Colony for a distance of 400 metre for cost of Rs.1,25,000/-. In terms of the above said Ex.B4 resolution, the 7th respondent herein executed a registered settlement deed Ex.A39 in favour of the 1st appellant / Town Panchayat Executive Officer in respect of portion of the suit property. After obtaining the settlement deed in respect of portion of the suit property, the 1st appellant has laid a road from 08.12.1998 and completed the same on 13.12.1998. After completion of the above said road, the respondents 1 to 6 filed the present suit only on 18.12.1998. 16. During the pendency of the present suit, the 3rd respondent herein filed a writ petition in W.P.No.863 of 1999 by stating that he is also entitled as one of the owner of the property, as per decree in O.S.No.74 of 1995, but the Government has interfered to form a road without resorting any legal proceedings and therefore, seeking a direction from this Court. This Court has disposed of the said writ petition, by stating that if the Government wants to form a road in the revision petitioners property, they have to do so only in accordance with law, after getting permission or acquiring the land, without doing the same Government cannot interfere with the writ petitioners title to the suit property and disposed of the writ petition accordingly. A perusal of the order passed by this Court revealed that in the above said proceedings not stated all the previous proceedings and also not stated the pending suits filed by the respondents 1 to 6 and also without any notice of 7th respondent herein, the above said order was passed. 17. The learned counsel appearing for the appellants would submit that the 1st respondent duly executed a registered sale deed on his own and also on behalf of his minor children for valid consideration in respect of the suit property and after that the 1st respondent colluded with his children filed the suits, suppressing material facts and obtained exparte decree in both suits and the trial court has considered all the above said facts correctly and dismissed the suit filed by the respondents 1 to 6. But, the 1st appellate court has wrongly interpreted the exparte decrees passed in earlier proceedings and failed to consider the facts that the respondents 1 to 6 have not filed any suit and seeking any relief to set aside the above said Ex.B1 sale deed as null and void and no court has granted any decree as Ex.B1 sale deed is null and void. In the above said circumstances, the 1st appellate court has wrongly decreed the suit as prayed for in the suit and therefore, the learned counsel appearing for the appellants prayed for to set aside the above said decree passed by the 1st appellate court. Further, the learned counsel appearing for the appellants would submit that only a small extent was given to the 1st appellant but the respondents 1 to 6 have filed a suit as if in the above said gift settlement deed, Ex.A39 executed for entire suit property and that fact was also not properly considered by the first appellate court. Further, the first appellate court has failed to consider the fact that the gift deed was executed in favour of the 1st appellant / Town Panchayat Executive Officer for laying a road extending the existing pathway to reach the colony for easy flow of vehicles, men and cattle and the first appellate court has failed to consider the interest of larger society instead of individual consideration. Therefore, the findings of the first appellate court has caused a mis-courage of justice. 18. Therefore, the findings of the first appellate court has caused a mis-courage of justice. 18. Per contra, the learned counsel appearing for the respondents 1 to 6 would submit that the respondents 1 to 4 have already filed a suit against the 7th respondent and obtained permanent injunction and further, the respondents 2 to 6 have filed a partition suit for 5/6 share of the respondents 2 to 6 in the suit property and the preliminary decree was passed and pending final decree proceedings. In the above said proceedings, the 7th respondent has not appeared and contested the suits and therefore, the above said decree passed in both the suits have become final. Further, the suit filed by the 7th respondent for permanent injunction against the respondents 1 to 6 and during the pendency of the suit, he executed a settlement deed in favour of the 1st appellant. Further, during the pendency of the present suit, the above said suit was also dismissed and therefore, the 7th respondent has no right over the above said suit property. Further, the 7th respondent has not appeared and contested this suit and only the appellants challenged the decree and judgment passed by the first appellate court and in view of the judgment passed in the earlier proceedings, the alleged settlement executed by the 7th respondent is not valid in law since the executor of the settlement deed has no right over the suit property and therefore, the respondents 1 to 6 are entitled the reliefs as prayed for. 19. It is not in dispute that the 1st respondent has a manager of the Hindu Joint Family and he sold the suit property on his own and on behalf of his minor children namely the respondents 2 to 6 in favour of the 7th respondent under Ex.B1 sale deed. But, subsequently, the respondents 1 to 4 have filed a suit in O.S.No.820 of 1994 and obtained permanent injunction against the 7th respondent and then respondents 2 to 6 filed O.S.No.74/95, suit for partition of 5/6 share of the respondents 2 to 6 in the suit property and the preliminary decree was passed accordingly. The above said preliminary decree was not challenged by the 7th respondent sofar and thereafter, it has become final. 20. The above said preliminary decree was not challenged by the 7th respondent sofar and thereafter, it has become final. 20. The learned counsel appearing for the appellants submitted that since it is an exparte decree, it is not binding on the appellants. The above said contention cannot be accepted. Even though the above said preliminary decree passed as exparte unless the 7th respondent who is party in the suit, has taking any steps to set aside the exparte preliminary decree and it is become final. The above said decree is binding on the 7th respondent and also binding on the appellants and the respondents 8 and 9. 21. Admittedly, it is also not in dispute that the respondents 1 to 6 have not filed any suit for the relief to set aside the sale deed Ex.B1 executed by the first respondent in favour of 7th respondent and obtained any decree. Only the respondents 2 to 6 are filed partition suit and claiming 5/6 share in the suit property and preliminary decree passed for their share. The 7th respondent as a purchaser from the 1st respondent, 7th respondent is entitled to 1/6 share in the suit property as per Ex.B1 sale deed. 22. The learned counsel appearing for the appellants relied on two decisions reported in 1) 1956 (2) MLJ 411 (Sankaranarayana Pillai and Another v. Kandasamia Pillai) and 2) 2006 (4) MLJ 1067 (Chinnan v. Paranimalai and Others) and submitted that when the minors are shown as "eo nomine" parties when the minors property also sold by natural guardian and the above said sale deed is not void but, it is only voidable and if the minors failed to initiate the proceedings to set aside the sale deed within three years of their attaining majority, the minors are deemed to be the parties of the transaction and the above said sale deed binding on minors and therefore, in the instant case, since the respondents 2 to 6/minors are "eo-nomine" parties in Ex.B1 sale deed and they are not challenged the above said sale deed within three years from attaining majority and therefore, they are not entitled to any share in the suit property. As rightly pointed out by the learned counsel for the respondents 1 to 6, in the suit filed by the respondents 2 to 6 in O.S.No.74/95, the 1st respondent, father of the respondents 2 to 6 was impleaded as D1 and also 7th respondent herein, who is purchaser from the 1st respondent impleaded as D2, but, both the respondents 1 and 7 were remained exparte and preliminary decree has been passed and becomes final and therefore, now the appellants cannot claim right by saying that the above said decree is only an exparte decree and therefore, not binding the 7th respondent. Both the decisions relied on by the appellants are not applicable to the facts of the present case. 23. On the side of the respondents 1 to 6 relied on a decision reported in (1994) 2 SCC 14 (Sulochana Amma vs. Narayanan Nair) and submitted that even though in the earlier decree of permanent injunction and preliminary decree for partition, passed exparte, but become final and hence, the above said decree and preliminary decree would operate as "res judicata" in subsequent suit and to that effect, relied on the above said decision. As rightly pointed out by the learned counsel for the respondents 1 to 6, since the 7th respondent is a party in the above said proceedings in both the suits but not contested the suit and becomes final and therefore, the above said findings regarding 5/6 share of the respondents 2 to 6 in O.S.No.74 of 1995 would operate as res-judicata. But, not res-judicata as against 1/6 share of the first respondent. 24. Both sides admitted that the 7th respondent has executed a settlement deed in favour of the 1st appellant and as per settlement deed, the 1st appellant laid a road in the portion of the suit property even prior to the filing of the present suit. It is also revealed that the final decree proceedings in O.S.No.74/95 is pending and final decree has not been passed sofar. In the above said final decree proceedings, the 7th respondent is also one of the respondent/defendant. During the pendency of the above said final decree proceedings, the 7th respondent has executed a settlement deed in favour of the 1st appellant. In the above said circumstances, the 1st appellant is entitled to 1/6 share even findings of earlier proceedings are accepted. 25. During the pendency of the above said final decree proceedings, the 7th respondent has executed a settlement deed in favour of the 1st appellant. In the above said circumstances, the 1st appellant is entitled to 1/6 share even findings of earlier proceedings are accepted. 25. In the instant case, the respondents 2 to 6 / plaintiffs originally filed the present suit seeking relief of mandatory injunction and subsequently amended the plaint and seeking relief of declaration that Ex.A39 gift settlement deed dated 07.12.1998 executed by 7th respondent in favour of 1st appellant, not binding on the respondents 1 to 6 and also seeking relief of declaration as the respondents 1 to 6 are entitled to the portion encroached and laying the road. Admittedly, the respondents 1 to 6 are not seeking relief of declaration for entire suit property of one acre and further, the respondents 1 to 6 are not seeking any relief to set aside the alleged sale deed Ex.B1. In the above said circumstances, this Court is of the view that even though the above said earlier proceedings are binding the 7th respondent and the appellants are not entitled 5/6 share of the respondents 2 to 6 but the 7th respondent is entitled to 1/6 share of 1st respondent as per Ex.B1 sale deed and hence, the 1st appellant is entitled to the above said 1/6 share as per Ex.A39 settlement deed. 26. In the above said circumstances, this Court is of the view that liberty is to be given to the 1st appellant to take steps to implead in the final decree proceedings pending in the partition suit in O.S.No.74 of 1995 and seeking relief to allot the portion, in which, the road was laid, may be allotted in the 1st appellant's 1/6 share and respondents 2 to 6 share may be allotted in the remaining portion in equity. In the above said circumstances, considering the reliefs sought for by the respondents 1 to 6 / plaintiffs in this suit are concerned, they are not entitled to any relief as prayed for in the suit. 27. In the above said circumstances, considering the reliefs sought for by the respondents 1 to 6 / plaintiffs in this suit are concerned, they are not entitled to any relief as prayed for in the suit. 27. In the above discussion, it is clear that the findings of the first appellate court that the 1st appellant herein has no right to execute the sale deed in respect of his share, in respect of the 7th respondent is not correct since the above said sale deed executed by the 1st respondent in favour of 7th respondent was not challenged in any one of the proceedings particularly in O.S.No.74/1995 and therefore, the findings of the first appellate court is not correct and the findings of the first appellate court is perverse findings. Therefore, it is liable to be set aside and answered the substantial question of law accordingly. 28. In view of the above said findings, the decree and judgment passed by the trial Court are set aside and the decree and judgment passed by the first appellate Court are modified as "Ex.B1-Settlement deed is not binding the share of respondents 2 to 6 /plaintiffs 2 to 6, but, it is valid in respect of the 1/6 share of the first appellant. Therefore, the first appellant is directed to approach the concerned trial Court and seeking allotment of the above said 1/6 share in the road portion on equity in the final decree proceedings in I.A.No.491 of 1997 in O.S.No.74 of 1995. 29. Accordingly, the second appeal is partly allowed. No order as to costs. Consequently, connected miscellaneous petition is closed.