Findings given in first appeal by the appellate court cannot be held as substantial question of law.

1. The first plaintiff is the appellant herein. He filed a suit for a declaration of title to the suit properties and for permanent injunction.

2. The case of the plaintiff is this: This suit properties originally belonged to the grandfather of the plaintiff by name Solai Moopanar. He died leaving behind him his two sons by name Alagu Moopanar and Maya Moopanar. Alagu Moopanar had four sons. The appellant/first plaintiff is one of the sons. The second son died leaving behind him his son Iyyanar who is the second plaintiff. The third plaintiff is the daughter of Maya Moopanar.

3. The plaintiffs 1 to 3 were jointly enjoying the properties for long over the statutory period. On 22.9.1980 the first respondent/defendant and others came to the suit property and disturbed their possession by assaulting the first plaintiff's son. Therefore, the suit was filed for the relief referred to above.

4. The first respondent/defendant in the written statement contended as follows: The grandfather of the defendant is one Gudalinga Thevar. The suit properties originally belonged to his grandfather and the said Solai Moopanar and they were enjoying the suit properties jointly. Therefore, both are entitled to half share in the suit property.

5. After his death, the defendant's grandmother Lakshmiammal was in possession and enjoyment of the half portion and thereafter one Ponnusamy was enjoying the same. Some years later the said Ponnusamy handed over the possession of the suit property to the defendant's father. The Revenue authorities also issued patta to the defendant's father and he is paying kist for the suit properties. Therefore, the plaintiffs are not entitled to claim absolute title or interest in whole of the suit properties. Therefore, the suit has to be dismissed. The suit is also bad for non-joinder of the defendant's father.

6. On the basis of the pleadings, the issues were framed. The trial Court, after trial, on consideration of the entire materials placed before the Court came to the conclusion that the suit properties belonged to both the plaintiffs and the defendant and as such the plaintiffs alone are not absolute owners of the suit property. It is also held that the defendant's father is also entitled to half share. On the basis of this finding, the suit for declaration claiming for the entire extent was dismissed holding that the plaintiffs are not entitled to an order of injunction.

7. Aggrieved over this judgment, the plaintiffs filed an appeal before the lower appellate Court. After hearing the parties, the lower appellate Court, elaborately considered the records and the submissions made by both the parties and found that the plaintiffs have not proved their case so as to seek relief of declaration of title and permanent injunction.

8. Challenging the judgment and decree dismissing the suit by accepting the plea of the defendant, the plaintiff 1 approached this Court by way of second appeal.

9. I have heard learned counsel for both, and have given my deep consideration over the submission made on either side.

10. Learned counsel for the appellant/first plaintiff submits that admittedly, the plaintiffs are the title holders in respect of half share of the suit properties and as such both the Courts ought to have decreed the suit atleast in respect of that half share.

11. Per contra, learned counsel for the respondent would contend that the suit claim for declaration of title is on the basis of the plea of plaintiffs that the entire properties belonged to them and with reference to the said issue, the evidence let in and both the Courts have dealt with the factual aspects with reference to that issue and correctly held that the plaintiffs are not entitled to any declaration of title, as before this Court he has come forward with the different plea, which is not the original plea made before the trial Court.

12. In support of this, learned counsel for the respondents would cite Madhavan v. Kannammal and 27 others,