Negative framing of issues by trial Court amounts to non-framing of proper issue.

1. The plaintiff in the suit in O.S.No.71 of 1995 on the file of the Court of District Munsif, Devakottai has preferred the above Second Appeal against the concurrent findings rendered both by the trial court and the first appellate court, the court of Subordinate Judge, Devakottai in dismissing the suit filed by the plaintiff, seeking the relief of declaration and delivery of possession of the suit property which is a residential building in D.No.2/87 in Old S.No.89/12 of Ariyakudi Village, Karaikudi Taluk in Sivagangai District.

2. The plaint averments, in short, are that the plaintiff having constructed the house in a village natham poramboke land and obtaining patta No.702 for it, in his name, has been in possession and enjoyment of the same for the last 30 years; that on the North of the suit property, there is a house site assigned by the Government in which he has constructed a house falling under S.No.89/10; that he had obtained co-operative loan pledging the said property; that the defendant has no semblance of right in the suit property; that he has no ancestral properties; that the defendant after his marriage had been to Sankarapuram and permanently stayed there along with his father-in-law and came back home only a couple of years back; that at his request the plaintiff permitted him to stay in the suit house, built in S.No.89/12; that in January, 1993 when the plaintiff withdrew the permission asking the defendant to vacate, on the defendants refusal a notice had been issued on 27. 1993, for which the defendant issued a reply with averments that his junior paternal uncle Vellaisamy who was assigned with the land in S.No.89/12 permitted him to construct the suit house and thereafter he has taken up his residence therein for the last ten years which are false; that the defendant has no property at the said locality at all; that it is the plaintiff who is paying the tax having obtained the UDR patta in his favour and on such averments the plaintiff would pray for the reliefs, extracted supra.

3. On the contrary, in the written statement, the defendant would submit that the plaintiff had never been in possession of S.No.89/12 at any point of time; that his house was located in S.No.89/11 and neither this property nor S.No.89/10 has any connection with the plaintiff; that the assessment number of the suit property is 703 and the Door number is 2/87-A; that he is in possession of the suit property for more than ten years having even performed the marriage of his daughter therein in the year 1989; that taking advantage of the plaintiffs name being the same as that of his junior paternal uncle, the plaintiff is trying to fish out something; that excepting the resemblance in names, the plaintiff has no other right to claim in the suit property; that the suit property is only belonging to their junior paternal uncle Vellaisamy with whose permission, the defendant has constructed the house and on such averments the defendants had ultimately prayed to dismiss the suit.

4. Thetrial court on the above pleadings by parties having framed three issues for determination of the above suit namely:

.(1) Whether the plaintiff is not entitled to the suit property;

.(2) Whether the plaintiff is entitled to the declaration;

.(3) What relief, if any, is the plaintiff entitled to.

has ordered, the trial in which the plaintiff besides examining himself as P.W.1 has also examined one Chinnaiah as P.W.2. On the part of the defendants, the defendant besides examining himself as D.W.1 has not only examined his junior paternal uncle Vellaisamy as D.W.2 but also yet another Adaikkan as D.W.3, for oral evidence. For documentary evidence, the plaintiff on his side has marked 15 documents as Exs.A-1 to Ex.A-15, Ex.A-1 is an order passed by the Tahsildar, Ex.A-2 and Ex.A-3, penalty receipts, dated 14. 1986 and 5. 1992 respectively, Exs.A-4 and A-5, tax receipts in the name Vellaisamy, dated 2. 1988 and 23. 1967 respectively, Ex.A-6