Partition suit - preliminary and final decree

It does not matter that you are not innocent. Do not worry about that. Do not consider it as your weakness. Since you paid the money, you are entitled to get the property or the money back. Actually the court should  have given you 50% of the property. The seller has 50% share in the property and the court should have allotted his 50% share to you. You are also entitled to get back the remaining 50% money. Since you are a defendant in the suit, you should definitely file your own appeal with the help of a good lawyer. The law is very clear that the buyer is entitled to the undivided share of the seller in a scenario like this. In the final decree proceedings, you should be allotted a specific 50% divided portion of the property. Immediately you should file your own appeal along with condonation of delay, if necessary. The court will usually condone the delay. Do not delay any further. If you file an appeal, it will be a bargaining point in the negotiations. If you do not file an appeal, you will not have a bargaining point in the negotiations. Do not trust anybody in the negotiations. It has become a common practice now to keep people engaged in negotiations and waste their time and find out their weaknesses and gain an advantage over them. Please act quickly without any further delay. 

My IA to set aside the preliminary decree was already dismissed now partition work is in progress

I am assuming that you filed the IA to set aside the preliminary decree in the trial court or lower court. It will definitely not be maintainable. What are the grounds to set aside the preliminary decree? Anyway, I think it is very unlikely that it would be maintainable. Hence it was rightly dismissed. 

The only option that would be maintainable is to file an appeal in the appellate court (Madras High Court or any other appropriate court). If the appeal goes in your favour, the preliminary decree would be set aside or modified. That is the right way to set aside a preliminary decree. An IA in the trial Court is not the right way. 

You must file an appeal in the appellate court and stay the partition work (I guess you mean final decree proceedings). 

The main puzzle in this case seems to be: If you informed the court about the sale deed and if the seller also admitted it, then why was the undivided share of the seller not allotted to you? This is the main puzzle here. In scanerios like this, the undivided share of the seller is allotted to the buyer. 

The sale deed is void or non est only to the extent of 50% belonging to the brother of the seller. It is not void or non est to the extent of 50% belonging to the seller. The sale deed is NOT VOID or non est entirely. 

You have very good grounds to file an appeal. Are you worried about the delay? When was the preliminary decree granted? Delay would be usually condoned in appeals. 

You are unnecessarily worrying that you are not innocent. That is not an issue at all. That is not your weakness at all. 

You are definitely entitled to get back your land and money. 

Please file an appeal. That is the right remedy. 

Consult a good lawyer. 

A separate suit should be filed to set aside a preliminary decree or any other decree. The only valid ground is fraud. If some important material facts are suppressed before the court while passing the decree, then it amounts to fraud, and the decree is considered to be a "DECREE OBTAINED BY FRAUD" and considered as nullity or non est in the eyes of law. 

The suit should be filed within three years from the date of knowledge of fraud. 

The court fee would also be quite high. For example, if the value of preliminary decree or partition suit is rupees one crore, then you have to pay 3% as court fee, which would be Rs. 3 lakhs, to set aside the preliminary decree. In addition, you may have to pay any other court fee depending on the reliefs claimed. 

The only valid ground is FRAUD to set aside a decree and you should be able to very clearly establish fraud. Otherwise you would waste your time and money. 

In your case, fraud is unlikely because you said that you informed the court about the sale deed and the seller also admitted it, so there is no fraud as far as the sale is concerned. The decree does not appear to be a "DECREE OBTAINED BY FRAUD." 

Another remedy is Section 44 of Indian Evidence Act (old), which is now Section 38 of the new evidence act. According to this section, you can show that a decree was obtained by fraud or collusion. In this remedy, you should not file a separate suit. Since partition work is in progress, you can file an IA within the IA of partition work (final decree petition) informing the court that the decree was obtained by fraud or collusion. If you successfully show it to be obtained by fraud or collusion, then the preliminary decree would be treated as non est or nullity. There is no need to actually set aside the decree. If it is shown to be obtained by fraud or collusion, then it would be automatically consdidered as a nullity. However, it depends on whether you can prove fraud or collusion, which may or may not be likely in your case. 

I am sharing the above information, because you filed an IA to set aside the preliminary decree. 

There is a clear difference between fraud and mistake. If some important material facts are suppressed before the court, then it is fraud. If all material facts are placed before the court but still the court passes a wrong decree, then it is mistake by the court. The above remedies are applicable only in the case of fraud. Not in the case of mistake by court. 

Appeal can be filed in the case of mistakes as well as fraud. 

If you think you were cheated by the seller and if you think you can prove it, you can file a separate suit to prove that you were cheated and recover the money. You can also obtain a stay on the partition work. 

You were wrongly advised to file an IA to set aside the preliminary decree. So, please try to obtain correct advice. I shared the above information, so that you do not get into a wrong path once again. 

Sir, You alrady got a huge amount of Expert advises.

all are correct and help you a lot.

now the questions arises,

1. you have the falty deed of conveyance, execute in favour of you. now, You have two options, a. after partition, the person 1, from whom you purchased the land, acquired which amount of land, declared in the schedule of property of the sale deed? if a major portion includes in his/her absolute share , you may ask him to transfer the same in your name by the cost of the seller.
2. secondly, if not then ask him to pay the consideration amount with registration charges by writtin and with a postal record of his receivings the same.
3. except the above options, if you have to go to court then you must have the claim as aforesaid but this time you have to claim your refund on the present murket value, with registration charge and the sum of the amount will be multiplied by the present bank interest rate. you may added a penalty charge for your loss and injury.
4. the claim amount will be higher than your expectation but with legal ground.
5. now the matter should be decided by the Court and the hon'ble Judge to solicit the matter.

Thanks for all the expert advises.

The reason why I applied IA to set aside the preliminary decree was I did not contest the case and my side was declared as exparte. I was advised by seller that he would sort out the issue and I was told the plaintiff wouldnt pursue the case further as seller was constantly talking to him to drop the case for amicable solution, infact we had 2-3 sitting on this. Also I was travelling frequently for my business and had high hopes this will be settled.

After the order was made I lost hope and moved for IA(before that seller also moved an IA to set aside the ex parte decree but that was ultimately defeated stating time delay tactics played) , my IA was filed after 3 years of preliminary decree stating I was not well with all other excuses which I had. Court denyed stating that delay is enormous and no proper reasoning to justify the delay and stated that since I accepted receiving the notice and all summons propertly it is my duty to follow up the case being the purchaser.

It is a common practice now. They will engage us in negotiations and they will give us hopes of amicable settlement. Trusting them, we lose time and the limitation period elapses and they gain an advantage. During the negotiations, they find out what is in our mind and how we are thinking. It helps them in their cheating plans. This is a common practice now. 

It appears that you were tricked into not filing the IA to set aside ex parte order within the limitation period, by giving you hopes of amicable settlement. 

You should never trust the opposite parties during negotiations. You should take all necessary legal steps within time. 

They successfully cheated you and gained an upper hand. 

You please consider all the remedies given by all the experts. 

I feel you still have chances of success if you act quickly. 

You can still file an appeal, I guess. The court needs to allot the share of the seller to you. It is a simple change to the preliminary decree. 

You can also file a separate suit against him or them to get back the money. 

Or, you try both the options. 

Do not delay any further. If you delay, you will be at a serious disadvantage.