ORDER: The revision petitioner is the defendant in O.S.No.8 of 1993 on the tile of the II Additional Sub Court. Coimbatore. The revision is tiled against the dismissal of the petition in I.A.No.295 of 2003 tiled under O.18. Rule 17, C.P.C in I.A.No. 1516 of 1999 in the above suit.

2. The petition I.A.No.295 of 2003 was filed to recall the defendant examined as R.W.I in I.A.No. 1516 of 1999 for further examination.

3. One Swami Subramania Chetty filed the suit O.S.No.8 of 1993 in forma pauperies for declaration and possession in respect of ‘B’ schedule property described in the schedule to the plaint, for past damages of Rs.7,500 and for future damages. The suit was filed on 11.10.1993. In the plaint it is stated that the plaintiff Swami Subramania Chetty by doing business in Bombay earned and on his return to Coimbatore. he purchased his ancestral property at Rangai Gounder Street sold to third party and he also purchased a vacant site in Mettupalayam Road, Coimbatore in 1932 and constructed two houses in the vacant site described in schedule ‘A’ bearing door Nos.357 and 358(Nev Door Nos.994 and 995 respectively). Door No.357 is ‘B’ schedule and the Door No.358 is ‘C’ schedule property. The ancestral property purchased by the plaintiff was sold in 1951 and purchased by one Nagappan Chettiar which is described in the schedule T)‘. Since the plaintiff was unmarried, he executed settlement deed on 11.3.1935 settling the property bearing door Nos.357 and 358 in favour of his sister Somu Ammal giving life estate and on her death to her sons to be born and the remainder to her male grandchildren and if no male children is horn, the property shall go to the plaintiff. The defendant is the son of Somu Ammal who was born subsequently Despite the execution of settlement deed, the plaintiff continued to be in possession and enjoyment of the properties, viz., door Nos.357 and 358. The suit O.S.No.33 of 1957 filed by the plaintiff for declaration of title and confirmation of possession that the settlement was not acted upon, was dismissed on 30.11.1958 after contest. But the plaintiff continued to be in possession of the suit properties. the plaintiff also filed suit O.S.No.95 of 1957 in respect of ‘D’ schedule property against his sister’s daughter Subbulakshmi. who purchased the same from the widows of Nagappa Chettiar in 1955 for declaration and the suit was also dismissed on 28.5.1958, because the widows were alive and certain issues were left open. The plaintiff was taking steps to file appeals against the dismissal of both the suits and in the mean-lime an arrangement was made between Somu Ammal and her daughter Subbulakshmi with the plaintiff. As per the same, the plaintiff agreed that he did not file appeals against the dismissal of suit O.S.No.95 of 1957 and that the plaintiff should continue to own and enjoy door Nos.357 and 358. The defendant, who is the son of SomuAmmal, is creating litigation with the plaintiff that he is in possession of TV schedule property on the death of her mother Somu Animal stating that he is residing there. According to the plaintiff, the defendant is only a trespasser.

4. The suit was resisted by the defendant by tiling written statement.

5. During the pendency of the suit, the plaintiff Swami Subramania Chetty died on 11.1.1999 and the respondent herein filed I.A.No. 1516 of 1909 on 15.3.1999 claiming that he is the son and only legal heir of his father Swami Subramania Chetty and his mother having predeceased his father and further stating that Swami Subramania Chetty executed a registered Will dated 23.5.1988 and therefore, he is to be impleaded as the second plaintiff in the suit and it is contested by filing counter by the revision petitioner, who is the defendant in that suit.

6. It appears, in the petition I.A.No.1516 of 1990. the respondent in that petition, viz.. the defendant was examined as R.W.1 and he filed I.A.No.295 of 2003 to recall him for the purpose of producing documentary evidence bein

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