- (1.) The plaintiff, who proved unsuccessful before the trial Court as well as the lower appellate Court, is the appellant in the second appeal. The defendants are the respondents. The suit was filed for declaration of title and mandatory injunction. The trial Court dismissed the suit and the lower appellate Court confirmed the decreed passed by the trial Court.
(2.) Notice before admission was issued to the respondents in the second appeal as the Court was of the view at the time of directing issuance of notice that the appeal could be disposed of either way at the time of admission itself. In case of disposal of the appeal at the time of admission, if the result is upsetting of the decree of the lower appellate Court, it shall be necessary to identify and formulate the substantial question (s) of law involved in the second appeal. That does not mean that in case of dismissal such questions need not be identified and formulated. Even after such formulation of the substantial question (s) of law based on which the parties would be allowed to put forth their arguments, the Court may decide the questions against the appellants which would result in the dismissal of the second appeal. Keeping in mind the above said principle, the appeal is to be considered.
(3.) The facts leading to the dispute are as follows: A total extent of 1.48 acres comprised in S.No.327/7 before its further sub-division belonged to three brothers, namely Chockalinga Gramani, Murugesa Gramani and Loganatha Gramani. After the demise of Chockalinga Gramani and Murugesa Gramani, a partition took place among Loganatha Gramani and the widows of Chockalinga Gramani and Murugesa Gramani. Admittedly, out of the above said total extent of 1.48 acres, Janakiammal, wife of Chockalinga Gramani sold 50 cents on the extreme west to Ramachandra Gramani, who is none other than the father of the first defendant. The balance extent of 98 cents which formed the eastern part of the S.No.327/7 was available with the family of the above said brothers and in a partition, the entire extent was allotted to Loganatha Gramani, the paternal grandfather of the plaintiff. According to the appellant/plaintiff, the western part extending 50 cents purchased by Ramachandra Gramani was assigned Sub-Division No.327/7A and the eastern part of the 98 cents which fell in the share of Loganatha Gramani was assigned Sub-division No.327/7B. According to the appellant/plaintiff, 58 cents forming the western part of S.No.327/7B was sold by Masilamani Gramani, the father of the appellant/plaintiff, under a sale deed dated 19.10.1973 marked as Ex.B1 and a certified copy of the same has been produced as Ex.A10. The case of the appellant/plaintiff is that the balance 40 cents fell to him in a family arrangement and pursuant to the family arrangement his father Masilamani gramani executed a registered settlement deed dated 02.05.1997 gifting the said property of 40 cents to the appellant/plaintiff. The said settlement deed has been marked as Ex.A5. Contending that without the consent of the appellant/plaintiff, the respondents/defendants were attempting to instal an electric pole in the said property measuring 40 cents, which has been shown as the suit property and draw electrical line to the well belonging to one Vijayaranga Gramani, by cutting and removing the casuinna trees planted by the appellant /plaintiff , he had filed the suit originally for a bare injunction. Subsequently, the plaint was amended by incorporating a prayer for the declaration of plaintiff's title in respect of the suit property and also for mandatory injunction for the removal of the electric pole planted in the suit property and the electric line drawn through the suit property to give service connection to the well of Vijayaranga Gramani.;