IMPORTANT POINT
Decision in second appeal without framing substantial question of law on the issue in question and without examining the issue cannot be sustained.

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is filed by the plaintiffs against the final judgment and order dated 09.07.2007 passed by the High Court of Judicature at Madras in Second Appeal No.652 of 1995 whereby the Single Judge of the High Court allowed the second appeal filed by defendant Nos.2 to 5 and set aside the judgment and decree dated 05.08.1994 passed by the Additional Subordinate Judge, Chingalpattu in A.S. No.72 of 1993 and dismissed the suit filed by the appellants herein.

2. In order to appreciate the issues involved in the appeal, which lie in a narrow compass, few facts need mention hereinbelow.

3. Appellant Nos. 1 and 2 are the plaintiffs whereas appellant No. 3 is the legal representative of third plaintiff-Thirunavukkarasu, who died pending litigation. The respondents are defendants in the civil suit.

4. The three plaintiffs claiming to be the members of one family filed a civil suit against the defendants for a declaration and permanent injunction in relation to the land situated at No. 294/1 Vembanur Village, Kadapakkam Firka, (patta No. 491), Old Paimash No. 201/8 renumbered as S. No 399/4, Acs. 1.08 (hereinafter referred to as "suit land").

5. The plaintiffs traced the title to the suit land through their predecessor-in-title coupled with Patta issued by the Estate Manager in relation to the suit land. According to the plaintiffs, there had been a family partition inter se the plaintiffs wherein the suit land fell to their share. The plaintiffs alleged that they have been in possession of the suit land, invested money and paying revenue taxes. The plaintiffs alleged that the defendants are trying to disturb their possession over the suit land without any legal authority and are also asserting their title over the suit land, which they do not have in their favour and hence there arise a need to file the civil suit and claim declaration and permanent injunction in relation to the suit land.

6. The defendants filed their written statement and denied the plaintiffs’ claim over the suit land. According to them, they are the owners of the suit land having purchased the same vide sale deed dated 15.02.1967 for Rs.200/- from one Muthu Mudaliar and his son Rajaram Mudaliar who, according to the defendants, were the owners of the suit land. Defendant No. 1 also claimed to be in possession of the suit land and cultivating the same.

7. The Trial Court framed two issues, viz., (1) Whether the plaintiffs are entitled for seeking declaration and permanent injunction; and (2) If so, for what reliefs. Parties adduced their evidence (oral and documentary). By Judgment and decree dated 23.11.1993, the Trial Court decreed the plaintiffs’ suit. It was held that the plaintiffs are able to prove their ownership over the suit land on the basis of the documents filed by them; that the plaintiffs are in possession of the suit land; that they are, therefore, entitled to claim a declaration of their title over the suit land as its owners so also are entitled to claim permanent injunction against the defendants restraining them from interfering in their (plaintiffs’) peaceful possession over the suit land.

8. The defendants felt aggrieved and filed first appeal before the Additional Sub-Judge (Appeal Suit No. 72/1993). By Judgment dated 05.08.1994, the Appellate Court dismissed the defendants’ appeal and affirmed the judgment and decree passed by the Trial Court.

9. The defendants pursued the matter further and filed second appeal in the High Court at Madras. The High Court admitted the second appeal on the following substantial question of law:

“Whether the same judge can dismiss an appeal on the ground that he has already rejected the appellants’ case in an earlier appeal against different parties in the absence of pleadings of rejudicata or estoppel by judgment by neither of the parties, especially when the issue is pending for decision before the High Court by way of second appeal.”

10. By impugned judgment, the High Court allowed th