Non-framing of necessary issues, hence, would not vitiate the findings of the trial Court, if findings are otherwise legally sound.

(Appeal filed under Section 100 C.P.C. against the decree and judgment dated 9.12.1994 made in A.S.No.60 of 1992 on the file of the Sub Court, Udumalpet setting aside the decree and judgment dated 30.4.1990 in O.S.No.649 of 1988 of the District Munsif of Udumalpet.)

The defendant is the appellant.

2. The plaintiffs/respondents are the legal heirs of one Thukkaiya Pannadi, who is the son of Palani Pannadi, who owned the suit property originally. After the death of Palani Pannadi, his heir Thukkaiya Pannadi rented the suit property orally to the defendant for a monthly rent of Rs.15/-. After the death of Thukkaiya Pannadi, the plaintiffs, as his legal heirs, though requested the defendant to vacate the premises, since he had failed to pay the rent, the defendant/appellant refused to do so claiming as if he had purchased the property orally from the father of the plaintiffs. On the basis of the above allegations, a suit came to be filed on the file of the District Munsif, Udumalpet for declaration of the plaintiffs' title to the suit property, for possession and for recovery of Rs.15/- as damage per month from the date of the plaint till the date of delivery of possession.

3. In the written statement as well as in the additional written statement, the defendant would contend, that the present building available in the suit property was constructed by this defendant, in which the plaintiffs have no right, since neither Palani Pannadi nor Thukkaiya Pannadi had constructed the building, that elsewhere in the year 1970 as per the market price available then, this defendant had purchased the site for Rs.75/-, for which there was an unregistered document also, that the alleged tenancy, as if this defendant had agreed to pay Rs.15/- per month and is in possession as tenant is a myth, invented to explain the possession, that the suit filed by the present plaintiffs is not maintainable, since the plaint would read as if there are other heirs also, that the plaintiffs are neither entitled to declaration nor possession, including the damages and that the suit is barred by limitation, since the defendant had prescribed title to the suit property by adverse possession being in possession continuously adversely for the past 18 years, thereby praying for the dismissal of the suit.

4. The learned District Munsif framing as many as four issues covering title, possession, profits took the case for trial, wherein the parties have marked Exs.A1 to A4 and Exs.B1 to B10, in addition to the examination of P.Ws.1 to 3 and D.W.1. The evaluation of the above materials, based upon possession, brought to surface, that the defendant is not occupying the property as tenant, that the defendant had prescribed title to the suit property by adverse possession, though he has failed to prove the alleged sale and this being the position, question of declaration or other consequential relief would not arise for consideration. In this view, the suit came to be dismissed on 30.4.1990, which was challenged before the first appellate Court in A.S.No.60/92 on the file of the Sub Court, Udumalpet.

5. The learned Subordinate Judge reassessing the evidence once again, as he is bound to reassess and hearing the submissions of either counsel felt, that the trial Court has not properly perused the evidence, whereas it had committed error. Taking a peculiar stand, as seen from paragraph-11 of the judgment, the first appellate Court came to the conclusion that since the defendant failed to prove the sale, it should be presumed or it should be held that he is occupying the property as tenant. It is the further conclusion of the learned first Appellate Judge, that though the defendant is in possession of the property, in view of the inconsistent stand taken by him viz., claiming title based upon the sale as well as on the basis of the adverse possession, which are not available, as seen from paragraph-13, upset the findings of the trial Court regarding adverse possession, t