1. This second appeal is focused by the original second defendant, animadverting upon the judgment and decree dated 211. 2007 passed in A.S.No.135 of 2005 by the Principal District Judge, Coimbatore, confirming the judgment and decree of the trial Court, namely, Principal Subordinate Judge of Coimbatore, in O.S.No.471 of 1999. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:

The plaintiffs/respondents 1 to 3 filed the suit O.S.No.471 of 1999 seeking the following reliefs:

"-divide the 1st item of the suit property into 6 equal shares and allot three such shares to the plaintiffs;

- permanent injunction restraining the 1 to 3 defendants, their men, agents, servants, or anybody else, not to interfere or encumbrance over the plaintiffs property."

D2 entered appearance and filed the written statement resisting the suit.

3. During trial, the first plaintiff/Jeevarathinam examined himself as P.W.1 and Exs.A1 to A19 were marked. On the side of the defendants, D2 examined himself as D.W.1 and Exs.B1 to B42 were marked.

4. Ultimately, the trial Court allowed the suit, as against which an appeal was filed by D2, for nothing but to be dismissed by the First Appellate Court. Being disconcerted and aggrieved by the said judgment and decrees of both the Courts below, this second appeal has been filed by D2 on various grounds and also suggesting the following alleged substantial questions of law:

"(a) Whether the suit is maintainable in law in the absence of relief of declaration that Ex.B.29 is null and void and not binding on the plaintiffs apart from the relief of seeking set aside the Ex.B29 by paying proper court fee?

(b) Having regard to scope of Section 115 of the Indian Evidence Act whether the plaintiffs are estopped from seeking the relief as prayed for in the present suit?

(c) Whether in law present suit for partition is maintainable in law when even according to the plaintiffs already a partition had taken place in respect of suit properties?"

(Extracted as such)

5. Heard the learned counsel for the appellant.

6. A poring over and deep analysis of the typed set of papers including the copies of the judgment and decrees of both the Courts below and consideration of the argument of the learned counsel for the appellant would display and demonstrate that the respondents 1 to 3 filed the suit O.S.No.471 of 1999 for partition on the main ground that the partition deed Ex.B29 (Ex.A1) was not acted upon.

7. The learned counsel for the appellant in the Second Appeal/D2 would develop his argument to the effect that D2 has been in possession and enjoyment of his portion allotted under the partition deed; Ex.B29 is a registered partition deed which both sides cannot give a go bye to it unless there is a prayer for declaring the said partition deed as null and void or sham and nominal etc., and that too after paying the Court fee and consequent decision emerging thereunder; however, in this case surprisingly and shockingly, despite the fact that the plaintiffs are parties to the partition deed, they have not chosen to seek for declaration and that paved the way for framing of substantial question of law.

8. The learned counsel for the appellant in the Second Appeal in all fairness invited the attention of this Court to paragraph 8 of the trial Court judgment which would exemplify and convey that D2 the appellant in Second Appeal himself had filed the O.S.No.757 of 2001 seeking partition based on the Will dated 06.01.1967 purported to have been executed by his father Rangasamy and the very appellant herein clearly and categorically took up the plea in that suit, that Ex.B29 was not acted upon. Hence in these circumstances, I am at a loss to understand as to how in this Second Appeal, he could be heard to contend