In the High Court of Judicature at Madras Dated: 06.06.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.289 of 1984 1. P.A.Nanjappan (died) 2. N.Arumugham 3. A.Angannan (died) 4. A.Nanjappan (died) 5. A.Padma 6. A.Senthil Kumar 7. A.Uma Maheswaran 8. Manickam 9. N.Saravanan 10.N.Sadhish (2nd appellant recorded as legal representative of the deceased 1st appellant vide Order in Memo No.SR.2496 of Deputy Registrar dated 10.09.1997) (Appellants 5 to 7 are brought on record as LRs.of the deceased 3rd appellant vide order of Court dt. 03.12.2004 made in CMP.No.9606/2004) (Appellants 8 to 10 are brought on record as LRs.of the deceased 4th appellant vide order of Court dated 18.01.2005 in CMPs.No.10416 to 10148 of 2004) ..Appellants ..vs.. 1. C.K.Natarajan (died) 2. C.K.Rajamanickam 3. Kannammal 4. Jeevanandam 5. Chitra 6. Karuppuswamy 7. Sivakumar (Respondents 3 to 7 are brought on record as LRs.of the deceased R1 vide order of Court dt.13.12.2001 made in CMP Nos.13530 to 13532 of 1997) ..Respondents Second Appeal filed under section 100 of Civil Procedure Code, against the judgment and decree dated 19.07.1983 made in A.S.No.65 of 1997 on the file of District Court, Coimbatore. For Appellants : Mr.V.Nicholas For Respondents : Mr.G.Suryanarayanan for R2 Mr.T.M.Hariharan for R3 to R7 JUDGMENT
The Second Appeal is directed against the judgment and decree dated 19.07.1983 passed by the learned District Judge, Coimbatore, in A.S.No.65 of 1977, whereby the judgment and decree passed by the learned II Additional Subordinate Judge, Coimbatore, dated 15.10.1976, in O.S.No.366 of 1975, were confirmed.
2. Appellants 1 to 4 were the plaintiffs and respondents 1 and 2 were the defendants before the trial court and other parties are the legal representatives of the deceased persons. For convenience, the parties would be referred to as in their rank in O.S.No.366 of 1975.
3. The plaintiffs filed the suit in O.S.No.366 of 1975 before the II Additional Sub Court, Coimbatore, for partition in the manner as detailed in schedule II in the plaint and separate possession of the same. The parties are related thus:
Arumuga Moopan=Karuppayee Ammal (wife)
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Anganna Moopan P.A.Nanjappan Arumugham
(son) died) (son) 1st plaintiff (son) died
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Pachiannan Arumugham Angannan Nanjappan
(son)died (son) (son) (son)
(2nd plaintiff) (3rd plaintiff) (4th plaintiff)
4. According to the plaintiffs, the 1st plaintiff Nanjappan, one Anganna Moopan and Arumugham are the brothers. The 1st plaintiff had two sons, viz., Pachiannan and Arumugam (the 2nd plaintiff) and 3rd and 4th plaintiffs are the sons of Arumugam, one of the brothers of the 1st plaintiff. It is the case of the plaintiffs that the 1st plaintiff and the then members of his family, sold common half share in the suit schedule I property along with other properties for a consideration of Rs.14,000/- to one Karuppanna Nadar (the father of the defendants) by virtue of a registered sale deed dated 05.12.1948 under Document No.4618 of 1948 of Coimbatore Registrar Office. Plaintiffs 2 to 4 were minors at that time and they have already executed necessary documents confirming the sale by their guardians. Out of the vendors, Anganna Moopan died issueless and Arumugam died leaving his legal heirs, who are plaintiffs 3 and 4. Pachiannan, son of the 1st plaintiff also died. So, the surviving vendors under the sale deed are the plaintiffs. Under the sale deed, the vendors have conveyed common half share on the northern side and retained the common southern share in schedule I property. Thereafter, there was a dispute between the parties and due to which, it has become impossible to enjoy the property in common without division by metes and bounds. Hence, plaintiffs 1 and 2 sent a notice on 25.04.1975 to the defendants demanding division of schedule I property. Though they received the notice, they did not agree for partition. Hence, the suit.
5. The defendants, who are the sons of the deceased Karuppanna Nadar, filed a written statement stating that the subject property and other properties were sold long ago on 12.05.1941 to one M.V.Rangaswamy Mudaliar by the junior paternal uncle of the 1st plaintiff and since then, the said Rangaswamy Mudaliar was in possession and enjoyment of the same. After his death, his wife Meenakshi Ammal inherited the properties and became the absolute owner. On 02.06.1965, the said Meenakshi Ammal sold the properties including the suit property to these defendants. Hence, right from 1941, the suit property is in undisputed possession of a stranger and his successor-in-interest. Even assuming that the plaintiffs have a case, their title has been lost by open and hostile possession for long over the statutory period. Earlier, the 1st plaintiff and his brothers filed O.S.No.1116 of 1947 on the file of District Munsif Court, Coimbatore against the said Meenakshi Ammal, wife of Rangaswamy Mudaliar, for possession and the same was dismissed in 1951. Hence, in respect of the suit property, there was already a judgment against the plaintiffs’ predecessor-in-interest and it is binding on the plaintiffs also and under such circumstance, the present suit is not maintainable in law because it is barred by res judicata. Hence, the defendants denied the alleged retention of the southern common portion of the suit property. In view of the said position, they did not send any reply to the notice caused by the plaintiffs. As a mater of law, the failure to send a reply will not amount to estoppel. Hence, the suit has to be dismissed.
6. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiffs, the 1st plaintiff examined himself as P.W.1 and marked five documents as Exs.A-1 to A-5 and on the side of the defendants, the 1st defendant examined himself as D.W.1 and marked 11 documents as Exs.B-1 to B-11. The trial court, after considering the entire evidence on record, both oral and documentary, had dismissed the suit. Challenging the said finding, the plaintiffs filed A.S.No.65 of 1997 on the file of District Court, Coimbatore and the lower appellate court by its judgment dated 04.04.1978, allowed the appeal and set aside the judgment and decree of the trial court by granting a preliminary decree for partition and separate possession of the suit II schedule property, against which, the defendants filed the second appeal before this Court in S.A.No.1630 of 1978 along with C.M.P.No.6829 of 1982 to receive a registered sale deed dated 11.03.1928 executed by Karuppusami in favour of one Kaliammal as additional evidence. This Court, by its judgment dated 21.06.1982, remitted the matter to the lower appellate court with a direction to dispose the matter afresh taking into consideration the document filed before this Court as Ex.B-12.
7. After remand by this Court, the appeal was taken up by the District Court, Coimbatore and Exs.B-12 to B-16 were marked by the defendants and the lower appellate court, on consideration of the entire documents, dismissed the suit and confirmed the judgment and decree of the trial court by its judgment dated 19.07.1983. Being aggrieved, the plaintiffs filed the present second appeal. During pendency of the second appeal, the 1st plaintiff died and his son, the 2nd plaintiff was recorded as his legal heir; the 1st defendant also died and respondents 3 to 7 were brought on record as the legal heirs of the deceased 1st defendant. Apart from them, the 3rd plaintiff Angannan died, but his legal heirs were not brought on record in the second appeal. This Court, by its judgment dated 13.02.2001, allowed the second appeal by setting aside the judgments and decrees of the courts below and decreed the suit as prayed for. Challenging the same, the 2nd defendant, viz., Rajamanickam, filed Civil Appeal No.5405 of 2002 before the Hon’ble Apex Court and ultimately, on 16.09.2002, the impugned judgment and decree were set aside and the matter was remanded to this Court for fresh consideration with the following direction:
“… It is not disputed that during the pendency of the second appeal, respondent No.3 had died and his heirs were not brought on record. In the absence of substitution, the appeal had abated. In that view of the matter, the judgment under challenge is set aside and the matter is sent back to the High Court. However, it is open to the respondents herein who were the appellants in the High Court, to move an application for substitution of respondent No.3. In case such an application is filed, the High Court shall decide the same in accordance with law”.
After remand, on an application filed by the 2nd plaintiff to bring on record the legal representatives of the deceased 3rd plaintiff Angannan, appellants 5 to 7 were brought on record as his legal heirs and thereafter, appellants 8 to 10 were also brought on record as the legal heirs of the deceased 4th plaintiff.
8. At the time of admission of the second appeal in 1984, the only substantial question of law formulated by this Court for consideration is, “Whether the order of the lower appellate court is not in accordance with the remand order of this Court ?”
9. Learned counsel for the appellants submitted that the suit property comprised in S.No.1588, measuring to an extent of 21 cents originally belonged to the 1st plaintiff and his family members, in which the 1st plaintiff and his brothers sold half share on the northern side measuring to an extent of 10= cents to the father of the defendants Karuppanna Nadar in and by a sale deed dated 05.12.1948 marked as Ex.A-1. A portion of the property, which was sold to the defendants’ father was described as Schedule I in the plaint. At the time of sale, plaintiffs 2 to 4 were minors. While selling the common half share on the northern side in S.No.1588, the plaintiff and his family members retained southern half share measuring to an extent of 10= cents for their own use. The portion, which was retained by them was shown as Schedule II in the plaint. At the time of execution of the sale deed, the son of the 1st plaintiff was the minor. Therefore, after he attained majority, a release deed Ex.A-2 was executed on 18.05.1963 relinquishing their right in the northern half share, which was already sold to the father of the defendants under Ex.A-1. Even in Ex.A-2, it has been specifically stated that the southern half share in S.No.1588 was retained by the plaintiffs. Therefore, from the documents Exs.A-1 and A-2, it could be seen that the plaintiffs are the owners of southern portion of the property measuring 10= cents and the defendants are the owners of northern portion of the property measuring 10= cents in S.No.1588.
10. The learned counsel for the plaintiffs further submitted that, in the year 1947, a mortgage was created in favour of one Natarajan and the said mortgage deed was marked as Ex.B-16 and the recitals of which would show that only the common 10= cents out of 21 cents on the northern half share in S.No.1588 was mortgaged and not the southern portion, which was in possession of the plaintiffs. Therefore, a combined reading of the recitals in Exs.A-1, A-2 and B-16 would show that the southern half portion in S.No.1588 is only in possession and enjoyment of the plaintiffs and northern portion of 10= cents alone was sold to the defendants, whereas the claim of the defendants is that they have purchased the properties in S.No.1588 including southern half portion of the property, described as schedule II. According to the defendants, the southern half portion of the property along with other properties was sold by the junior paternal uncle of the 1st plaintiff, viz., one Kuppusamy Naidu in favour of one Rangasamy Mudaliar (the husband of Meenakshi Ammal) in and by a sale deed dated 12.05.1941 marked as Ex.B-7 (i.e.even before the purchase of northern portion of 10= cents by the father of the defendants). It is the specific case of the defendants that after the demise of Rangasamy Mudaliar, the said property was devolved upon his wife namely Meenakshi Ammal, who, in turn, sold the properties to the defendants in and by a sale deed dated 02.06.1975 marked as Ex.B-6.
11. In this regard, the learned counsel for the plaintiffs, submitted that a perusal of Ex.B-7 would show that what was sold to Rangasamy Mudaliar by the junior paternal uncle of the 1st plaintiff was the lands comprised in S.Nos.1589, 1612 and 1614; but, in the said document, no reference was made with regard to S.No.1588. Therefore, Meenakshi Ammal, wife of Rangasamy Mudaliar, had no right whatsoever to sell the southern half share measuring 10= cents in S.No.1588 which was retained by the plaintiffs, after conveying northern portion to the defendants.
12. The learned counsel for the plaintiffs, by inviting the attention of this Court to the earlier documents dated 11.03.1928 and 07.06.1928 marked as Ex.B-12 and B-8 i.e.(i) the sale deed executed in between the family members and (ii) another sale deed executed by Kaliammal as guardian and mother of minor Nanja Moopan in favour of one Kapini Mudaliar, submitted that in the said sale deeds ultimately the properties under S.No.1529, 1512 and 1574 were conveyed to the purchasers. So far as S.No.1588 is concerned, it was only with the possession and enjoyment of the family of plaintiffs and except them, no other parties could alienate the property. The 1st plaintiff and his brothers had alienated only the northern portion of the property in S.No.1588 under Ex.A-1. In this back ground, a combined reading of Exs.B-12 and B-8 and Ex.B-7 i.e. the sale deed executed by the junior paternal uncle of the 1st plaintiff in favour of Rangasamy Mudaliar would show that what was sold by Kuppusamy Naidu was only the properties comprised under S.Nos.1589, 1612 and 1614; but the courts below, without taking into consideration these aspects and by erroneously relying upon the judgment made in O.S.No.1116 of 1947, namely, the dismissal of the suit filed by Anganna Moopan, the brother of the 1st plaintiff as against Meenakshi Ammal, had come to the conclusion that since the judgment rendered in O.S.No.1116 of 1947 had reached finality, the case of the plaintiffs that they are having the right over the southern half portion of the property cannot be accepted.
13. Attacking the said finding, the learned counsel for the plaintiffs further submitted that a careful reading of the judgment in O.S.No.1116 of 1947 would show that the finding in the said judgment only relates to S.Nos.1589, 1612 1614 only and not in respect of S.No.1588. So far as S.No.1588 is concerned, in the said judgment, only a passing reference was made with regard to a shed situated in S.No.1588 and not in respect of the entire extent of 10= cents. Therefore, the courts below, by wrongly relying upon the judgment rendered in O.S.No.1116 of 1947, had held that since the issue had already been decided, the principle of res judicata would apply. The learned counsel further submitted that the southern portion was sold wrongly to the defendants only in the year 1965 by Meenakshi Ammal. The plaintiffs have filed the present suit in the year 1975 i.e. within the period of ten years and even well before the completion of statutory period of 12 years to claim adverse possession. Therefore, it cannot be said that the defendants had prescribed title over the suit property. Looking at from any angle, the evidence on record would show that the plaintiffs are the owners of the southern portion of the property. Under such circumstances, the judgment and decree of the courts below are liable to be set aside since the findings of the courts below are not based on legal evidence. In support of his contentions, the learned counsel has relied upon the decisions reported in SRIMATI RAJ LAKSHMI DASIAND OTHERS .v. BANAMALI SEN AND OTHERS (AIR 1953 SC 33) and KARTHIAN KONE, CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY .vs. BAGHYATHAMMAL CHOULTRY CHARITY ((1969) 82 L.W.425).
14. Per contra, the learned counsel for the 2nd defendant and the legal heirs of the deceased 1st defendant submitted that the plaintiffs’ family owns totally 4= acres of agricultural land. This 21 cents comprised in S.No.1588 with the well and shed is situated adjacent to the agricultural land and it has been used for storing agricultural produce. Out of 4= acres, the plaintiffs had sold 2 acre 64 cents of agricultural land. It was also admitted by the plaintiffs that the northern half share property measuring to an extent of 10= cents was sold to the defendants’ father Karuppanna Nadar. But their only contention is that they retained 10= cents in the southern portion. In this regard, the learned counsel, by relying upon the same documents, namely Exs.B-12 and B-8 submitted that though S.No.1588 was not mentioned in the said documents, it has been specifically stated in those documents that the southern portion of the well also sold. The junior paternal uncle of the 1st plaintiff, by name, Kuppusamy Naidu while selling S.No.1589, 1612, 1614 had also sold the southern portion which was referred to in the earlier documents. The ‘southern portion’ in all those documents would only refer S.No.1588 and this was confirmed in the suit O.S.No.1116 of 1947 filed by Anganna Moopan as against Meenakshi Ammal, wife of Rangasamy. Hence, though S.No.1588 was not mentioned in the documents filed on behalf of the plaintiffs, in the said judgment, it has been held that Kuppusamy Naidu and his predecessor-in-title have been the owners of the shed situated in S.No.1588 and have been in possession thereof. Admittedly, the shed is situated in the southern half portion of the suit property. But, aggrieved over the said finding, no appeal had been filed. Therefore, that finding had reached finality. On the other hand, the finding would show that the predecessor-in-title of the defendants were in possession of the southern portion of S.No.1588 for a long period. Moreover, P.W.1 in his cross examination has deposed that no document has been filed to show that they are in possession and enjoyment of the southern portion of the property. Therefore, the evidence on record would show that the southern portion of the property was sold to the defendants along with the properties in other survey numbers. The finding in O.S.No.1116 of 1947 that the predecessors of the defendants were in possession and enjoyment of the suit property will operate as res judicata. Moreover, by continuous and long possession, the defendants have prescribed title over the suit property. The courts below by considering these facts, correctly rejected the case of the plaintiffs. Hence, no interference is necessary.
15. This Court has paid its anxious consideration on the submissions made by the learned counsel on either side.
16. It is not in dispute that the suit property comprised in S.No.1588 is measuring to an extent of 21 cents. It is the case of the plaintiffs that they have sold 10= cents of northern portion in the suit property by retaining southern half of 10= cents. In order to prove their case, the plaintiffs have relied upon three documents Exs.A-1, A-2 and B-16. Ex.A-1 is the sale deed dated 05.12.1948 executed by the members of the plaintiffs’ family in favour of the defendants’ father. A reading of the said sale deed would show that after retaining southern = share, northern = share to an extent of 10= cents was sold. Ex.A-2 is the release deed dated 18.05.1963 executed by plaintiffs 1 and 2 in favour of Natarajan and another, wherein it was found the sale of northern portion. That apart, the plaintiffs have also relied upon Ex.B-16, the mortgage deed dated 10.09.1947 i.e.mortgage created by Anganna Moopan, the 1st plaintiff’s brother, the 1st plaintiff and others in favour of one Natarajan. On a perusal of the said mortgage deed, it is clear that only the northern portion was mortgaged. But this mortgage deed is prior to Ex.A-1, the sale deed executed by the plaintiffs in favour of the father of the defendants. According to the plaintiffs, before the date of Ex.A-1, the entire portion was with them. Under such circumstances, in my considered opinion, no significance would be given to the submission made by the plaintiffs based on Ex.B-16 since Ex.B-16 is prior to the sale deed executed by the plaintiffs in favour of the defendants’ father.
17. Per contra, it is the case of the defendants that though S.No.1588 was not mentioned in the earlier documents, namely, Exs.B-7, B-8 and B-12 of the years between 1928 and 1941 and through Ex.B-7 dated 12.05.1941, the suit property was alienated to one Rangasamy Mudaliar by the paternal uncle of the 1st plaintiff, wherein a reference was made about the southern portion of the property. After demise of Rangasamy Mudaliar, his wife Meenakahsmi Ammal sold the property (southern half share) to the defendants. Therefore, they are the owners of entire extent of property measuring to an extent of 21 cents.
18. Therefore, the questions that have to be decided in this case are,
(1) Whether the recitals found in Exs.A-1 and A-2 to the effect that the southern portion has been retained by the plaintiffs is correct or not? and
(2) Whether the contention of the defendants that along with other properties, the southern portion of the property (disputed property) was also sold to Rangasamy Mudaliar by the paternal uncle of the 1st plaintiff, without mentioning the survey numbers of the properties, is correct ?
19. In my considered opinion, to find out the answer for the said issues, it is necessary to see the judgment delivered in O.S.No.1116 of 1947 i.e.the suit initiated by Angannan Moopan as against Meenakshi Ammal, wife of Rangasamy Mudaliar. In the said suit, the following observation has been made:
“3. …. Kuppuswamy Naidu and his predecessors-in-title have been the owners of a shed situated in S.F.No.1588 and have been in possession thereof. After the sale by Kuppuswamy Naidu to this defendant’s husband, the latter and after his death this defendant has been in possession of S.F.No.1589, 1612 and 1614 together with the shed situated in S.F.No.1588. This defendant and her predecessor-in-title have been dealing with the said properties in their own right and enjoying the same. The description of the property in the plaint is misleading. This defendant is entitled to possession of a shed of 2= anganams in the western side, situate in S.F.No.1588…”
20. A reading of the said judgment of the year 1951 would show that the defendants’ predecessor was in possession and enjoyment of S.No.1588; but the submission of the learned counsel for the plaintiffs that the said judgment speaks about only a portion of S.No.1588, namely, the shed and not the entire extent. Therefore, it is the contention of the plaintiffs that the said finding cannot act as res judicata to decide the issue involved in this case. Therefore, the next question falls for consideration is, whether the finding delivered in O.S.No.1116 of 1947 will act as res judicata when it speaks about only a portion of S.No.1588 i.e. southern portion. At this stage, it would be appropriate to refer the judgment relied on by learned counsel for the defendants in AIR 1953 SC 33 (supra) which would give a fitting answer for this.
“19. The first contention raised by him was that the judgment of the Privy Council could not operate as res judicata against the present contention of the Sens and the mortgagees, about the title to the four anna share of Raj Ballavs estate, because the subject-matter of those proceedings was the compensation money, a sum of Rs 900, and not the property that is the subject-matter of the present suit. He argued that when the plea of res judicata is founded on general principles of law, that plea can only prevail provided the subject-matter in the two cases is identical. It was conceded that such contention could not be sustained under the provisions of Section 11 of the Code. In our opinion, this argument is untenable and was negatived by Their Lordships of the Privy Council in Bhagwati v. Ram Kali (66 IA 145) cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.
21. In (1969) 82 L.W.425 (supra), a Division Bench of this Court has held as follows:
“It seems to us that this Court undoubtedly embarked upon a determination of the question of title of Bhagyathammal and that question was in the nature of a question of law. In Rajlakshmi Desi vs. Banamali Sen (AIR 1953 SCC 33) their Lordships point out that the test of res judicata is the identity of title in the two litigations and that so long as the competency of the former court to try the subsequent suit cannot be denied, the general rule of res judicata applies. Even apart from this, the defendant Karthik Kone against whom the point was decided in the second appeal sought to have judgment of the court reviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is difficult to see how a review application pointed out that though the question was raised for the first time in the second appeal, at the time of the hearing as objection was raised, and, as we said earlier, both sides argued the question, before the learned Judge rendered his decision in the second appeal. We may further point out that far from the observations of the learned Judge being in the nature of an obiter dicta, the actual decision on this point was incorporated in the decree in the second appeal, the clause of the decree reading thus:
“That the first defendant (Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trust properties and the first defendant shall be at liberty to take appropriate steps to work out her rights to joint management by way of separate proceedings….”
There is accordingly a decree embodying the decision of the Court and it seems to us that it can no longer be maintained that the observations are merely obiter dicta having no executable force. It is not open to Kartik Kone to question the decree unless he can say it is nullity which it obviously is not. In Kolu Nambiar v.Chathu Nambiar (52 J.C.258) , this Court held that a matter could be in issue under S.11 of the Civil Procedure Code even though an express issue had not been framed. It would be in issue if the decision about it is necessary for the decree. They say further that if the finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter dicta. It follows that where the finding was incorporated in a decree, the position would clearly be otherwise. This has been emphasised in Sankara Mahalinga Chettiar v. Muthulakshmi (33 M.L.J.740), where it was held that though a finding might be unnecessary yet if it is embodied in the decree, it will operate as res judicata”.
22. A reading of the above judgments would show that the test of res judicata is the identify of title in the two litigations and not the identity of the actual property involved in the two cases. Therefore, the submission made by the learned counsel for the plaintiffs that the finding rendered in the earlier suit O.S.No.1116 of 1947 was in respect of a portion of S.No.1588 and not to the entire extent of S.No.1588 (the disputed area) cannot be accepted. Moreover, I find that the property was sold to the defendants’ vendor’s husband, by name, Rangasami Mudaliar as early as 1941 and in 1965, the defendants purchased the same from Meenakshi Ammal, wife of Rangasami Mudaliar and that the suit was filed in 1975 and from 1975, the suit property has been in possession and enjoyment of the defendants and before that, the predecessor-in-title of the defendants was in possession and enjoyment of the suit property for more than the statutory period. Therefore, I do not find any error in the finding arrived at by the courts that the plaintiffs do not have any right over the suit property.
23. The learned counsel for the plaintiffs has relied upon a decision reported in A.C.BAKTHAN AND ANOTHER ..vs.. ROSIAMMAL (2010(2) CTC 514) that if the conclusion drawn by the courts below is erroneous and ignored material evidence, the High Court in exercise of its jurisdiction can interfere with the same; but I am of the view that the findings do not suffer from any infirmity warranting interference and no substantial question of law is involved in the second appeal. Hence, the second appeal has no merits and is bound to fail.
For the reasons stated above, the second appeal is dismissed. No costs.
gl
To
1. The Principal District Judge,
Coimbatore
2. The II Additional Subordinate Judge,
Coimbatore