- (1.) THIS second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 29.10.2009 passed in A.S.No 12 of 2009 by the Sub Court, Dharmapuri, confirming the judgment and decree of the learned District Munsif-cum-Judicial Magistrate Court, Palacode in O.S.No.45 of 2005. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
(2.) BROADLY but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit for declaration and for permanent injunction in respect of the land measuring an extent of 83 cents in S.No.572/4 in Periyanahalli village, against the defendants on the main ground that the defendants are attempting to trespass into the plaintiff's property described in the schedule of the plaint. (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) The plaintiff-Siddha Gounder examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A3 were marked. The first defendant-Palani Gounder examined himself as D.W.1 along with D.Ws.2 and 3 and Exs.B1 to B5 were marked. (e) Ultimately the trial Court dismissed the suit, as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that both the Courts below failed to take into consideration the patta issued in favour of the plaintiff by the revenue authorities concerned and his continuous possession over the suit property; the admissions made by the defendants were not taken into consideration by the Courts below. There is no dispute about the entitlement of the plaintiff's father over the suit property and in the oral partition, the plaintiff got the suit property in his favour. As such, suggesting the following substantial questions of law, this Second Appeal has been filed: "(a) Whether the Courts below are correct in dismissing the suit for declaration and injunction when the defendants have admitted the title and possession of the plaintiff in the suit property. (b) Whether the defendants are competent persons to dispute the extent of share available to the plaintiff among his brothers when the title of plaintiff's father has been admitted by them. (c) Whether the decree and judgment of the Courts below in dismissing the suit are legally sustainable when the defendants admitted the case of the plaintiff. (d) Whether the unexplained admission of the defendants regarding the title of the plaintiff will entitle the plaintiff to get a decree" (extracted as such)
(3.) HEARD both sides. The gist and kernel of the arguments of the learned counsel for the plaintiff would run thus: (a) The issues were not framed properly by the trial Court. (b) The title over the suit property was not in dispute at all, even then the trial Court observed as though the plaintiff failed to prove his title over the suit property. (c) Since the defendants attempted to trespass into the plaintiff's property, the latter was driven to the extent of filing the suit. (d) The first appellate Court which is expected to go into all the factual aspects failed to consider the evidence properly and simply confirmed the findings of the trial Court without ushering in the proper law points concerned. (e) In fact, the defendants who were owning the suit property to the north of the suit property sold away their property. (f) Without considering the pros and cons of the matter, both the Courts below disposed of matter, warranting interference in the Second Appeal. Accordingly the learned counsel for the plaintiff prays for allowing the Second Appeal and for decreeing the original suit.;