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10. Per contra, the learned Counsel appearing for defendant contended that admittedly Chowrappa was a Catholic Christian. He acquired title under a registered sale deed. It is averred in the plaint that it was his self acquisition. Therefore this concept of joint family is alien to Christians. Therefore, on the date of partition, plaintiffs had no vested right in the property. It is under that document, for the first time, they claim right to the said property. It is settled law, that partition is not a transfer and therefore, the plaintiffs did not acquire any title under the partition deed. Therefore they are not entitled to the relief of declaration. The evidence on record clearly establishes that plaintiffs had been dispossessed through the process of law and the defendant was put in possession and the plaintiffs were not in possession on the date of the suit. A suit for declaration without the relief of possession is hit by Section 34 of the Specific Reliefs Act, and was not maintainable. Lastly, it was contended that the decree in O.S.No. 224/78 was an exparte decree and Chowrappa was duly served with the suit summons. He did not choose to contest the said proceedings and therefore a decree came to be passed on the basis of the affidavit filed by the defendant. Assuming for the sake of argument, the judgment in the said suit is not in conformity with Order 41 Rule 35, it will not become void as the said judgment and decree is not challenged on that ground and is not set aside. It is valid and binding on the parties. Further it was pointed out that after the defendant took possession of the property, in pursuance of the decree passed in the aforesaid execution proceedings, plaintiffs father Chowrappa filed Miscellaneous Petition under Order 9 Rule 13 of CPC for setting aside the said exparte decree. After contest, the said Miscellaneous Petition came to be dismissed. Aggrieved by the said order he preferred Miscellaneous First Appeal before this Court which also came to be dismissed after contest and thus the aforesaid decree has become final. In that view of the matter, when the defendant has taken possession of the suit schedule property in pursuance of the valid decree passed, in execution proceedings, through Court, with the help of the Police, it is too late in the day for them to contend that they still continue to be in possession and delivery given to them is a sham one. Therefore, he submits that the plaintiffs have no manner right, title or interest, they are not in possession and therefore, the Court below was justified in dismissing their suit for declaration of title and for injunction.

POINT NO. 3:

33. In so far as the decree passed in O.S.No. 224/78 is concerned, the plaintiffs' father Chowrappa was a parry to the said suit. He is the person who had purchased the suit schedule property. He was duly served with the suit summons. He remained exparte. It is thereafter the Court proceeded to pass exparte decree. Chowrappa after loosing possession of the property, filed Misc. application for setting aside the said exparte decree. After contest, the said Miscellaneous application was dismissed on merits. He challenged the said order by preferring Miscellaneous First Appeal before this Court, After contest, the said MFA is also dismissed. Thus, the decree passed in O.S. 234/78 has become Final. In the said suit the Court had declared that the sale deed executed in his favour is annulled and plaintiff in the said suit is the owner of the property and it also further directed that he is entitled to possession and a decree of possession was passed. It is that decree which has been duly executed and possession has been taken. Merely because that exparte decree was not in accordance with law, it in no way helps the plaintiffs, as they have not challenged the said exparte decree on that ground. However, their father challenged the said decree and the challenge was negatived. Under the partition deed the plaintiffs did not acquire any right over the suit property and the ownership continued with Chowrappa and that ownership is annulled by the aforesaid decree passed by the competent Civil Court. As the plaintiffs are claiming title to the property from Chowrappa they are also bound by the said decree.