Alagumalai Moopanar vs Subbiah and two others

The first plaintiff is the appellant herein. He filed a suit for a declaration of title to the suit properties and for permanent injunction.

The case of the plaintiff is this: This suit properties originally belonged to the grandfather of the plaintiff by name Solai Moopanar. He died

leaving behind him his two sons by name Alagu Moopanar and Maya Moopanar. Alagu Moopanar had four sons. The appellant/first plaintiff is one

of the sons. The second son died leaving behind him his son Iyyanar who is the second plaintiff. The third plaintiff is the daughter of Maya

Moopanar.

The plaintiffs 1 to 3 were jointly enjoying the properties for long over the statutory period. On 22.9.1980 the first respondent/defendant and

others came to the suit property and disturbed their possession by assaulting the first plaintiffs son. Therefore, the suit was filed for the relief

referred to above.

The first respondent/defendant in the written statement Contended as follows: The grandfather of the defendant is one Gudalinga Thevar. The

suit properties originally belonged to his grandfather and. the said Solai Moopanar and they were enjoying the suit properties jointly. Therefore,

both are entitled to half share in the suit property.

After his death, the defendant''s grandmother Lakshmiammal was in possession and enjoyment of the half portion and thereafter one Ponnusamy

was enjoying the same. Some years later the said Ponnusamy handed over the possession of the suit property to the defendant''s father. The

Revenue authorities also issued patta to the defendant''s father and he is paying kist for the suit properties. Therefore, the plaintiffs are not entitled

to claim absolute title or interest in whole of the suit properties; Therefore, the suit has to be dismissed. The suit is also bad for non-joinder of the

defendant''s father.

On the basis of the pleadings, the issues were framed. The trial Court, after trial, on consideration of the entire materials placed before the Court

came to the conclusion that the suit properties belonged to both the plaintiffs and the defendant and as such the plaintiffs alone are not absolute

owners of the suit property. It is also held that the defendant''s father is also entitled to half share. On the basis of this finding, the suit for

declaration claiming for the entire extent was dismissed holding that the plaintiffs are not entitled to an order of injunction.

Aggrieved over this judgment, the plaintiffs filed an appeal before the lower appellate Court. After hearing the parties, the lower appellate Court,

elaborately considered the records and the submissions made by both the parties and found that the plaintiffs have not proved their case so as to

seek relief of declaration of title and permanent injunction.

Challenging the judgment and decree dismissing the suit by accepting the plea of the defendant, the plaintiff ! approached this Court by way of

second appeal.

I have heard learned counsel for both, and have given my deep consideration over the submission made on either side.

Learned counsel for the appellant/first plaintiff submits that admittedly, the plaintiffs are the title holders in respect of half share of the suit

properties and as such both the Courts ought to have decreed the suit atleast in respect of that half share.

Per contra, learned counsel for the respondent would contend that the suit claim for declaration of title is on the basis of the plea of plaintiffs

that the entire properties belonged to them and with reference to the said issue, the evidence let in and both the Courts have dealt with the factual

aspects with reference to that issue and correctly held that the plaintiffs are not entitled to any declaration of title, as before this Court he has come

forward with the different plea, which is not the original plea made before the trial Court.

In support of this, learned counsel for the respondents would cite Madhavan v. Kannammal and 27 others1990 (2) LW 274 to say that the

plaintiffs cannot abandon their own case and claim relief on the basis of the defendant''s case, that too, before the appellate Court.

Further, on perusal of the judgments of both the Courts, it is clear that the case of the plaintiffs is that the defendant has no interest that the

plaintiffs alone are the title holders and that they are the grandsons of the original owners.

It is also the case of the plaintiffs that they were in possession for long over the statutory period. So, when that is the case of the plaintiff, in my

view, the submission made by the learned counsel for the appellant/first plaintiff, atleast to pass a decree in respect of half of the share may not be

justified.

Moreover, as rightly pointed out by the learned counsel for the respondent by citing Smt. Sokkuthai Ammal and Another Vs. Pandiaraj and

Others, , this Court, u/s 100 of the CPC can entertain the second appeal only when there is substantial question of law and the first appellate Court

is competent to entertain the question of facts and decide whether the finding of fact arrived at by the trial Court are erroneous or not and the

Court of second appeal is not competent to find about the soundness of the fact.

So, in view of the restrictions u/s 100 of the CPC after the amendment, I am not able to persuade myself to agree with the contentions urged

by the learned counsel for the appellant.

Therefore, the second appeal which has no merit, is liable to be dismissed and therefore, it is dismissed.