The Appellate Court's Judgment was vitiated by an error in procedure as it did not comply with the mandatory provisions of Order 41 Rule 31 of the Civil Procedure Code.

The Appellant/2nd Defendant has focussed the present Second Appeal before this Court as against the Judgment and Decree dated 08.01.2001 in A.S.No.51 of 1998 passed by the Learned Additional Subordinate Judge, Tiruvannamalai in reversing the Judgment and Decree of the Learned District Munsif, Tiruvannamalai dated 09.02.1998 in O.S.No.623 of 1985 and allowing the Appeal with costs.

2. Earlier, before the trial Court in the main suit filed by the 1st Respondent/Plaintiff, during trial, 1 to 10 issues have been framed. On the side of the 1st Respondent/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.9 have been marked. On the side of the Defendants, witnesses D.W.1 to D.W.5 have been examined and Exs.B.1 to B.19 have been marked. Also, on behalf of the Court, Ex.C.1-Commissioner's Report and Ex.C.2-Plan have been marked.

3. On a careful analysis of the entire gamut of then oral and documentary evidence available on record, the trial Court has come to a consequent conclusion that there is no proof to show that Syed Rahim has enjoyed the suit property in Town Survey No.1625. Further, it observed that it is not evident from the witnesses produced that Syed Shami has been allotted a suit site in oral partition and moreover, after purchasing the suit site, it is not to be inferred from the evidence of witnesses that the suit property has been handed over to him. Added further, prior to the Plaintiff purchasing the suit property in that place one Hussain Sheik has resided in the house constructed before 15 years and later he sold the same to the 1st Defendant (2nd Respondent in this Second Appeal) as seen from Exs.C.1-Report and C.2-Plan and also handed over possession and after taking into consideration of Ex.B.8-Receipts and also on the basis of Exs.A.1 to A.12 documents, the Plaintiff in the present suit is not entitled to any of the reliefs as prayed for by him and ultimately, dismissed the suit with costs of the Defendants.

4. The First Appellate Court viz., the Learned Additional Subordinate Judge, Tiruvannamalai, while passing the Judgment in A.S.No.51 of 1998 on 08.01.2001, has, among other things, observed that 'in any event, the trial Court ought to have found out that the suit property mentioned by the Appellant/Plaintiff and the Defendants are different ones by scrutinising the documents and further that the trial Court has assigned some small reasons without bestowing to the documents and resultantly, dismissed the suit filed by the Appellant/ Plaintiff that he has not established his right over the suit property and consequently, allowed the Appeal by setting aside the Judgment and Decree of the trial Court and granted the decree as prayed for by the Plaintiff. Further, the Appellant/Plaintiff has been granted the liberty to initiate separate proceedings for mense profits as per Order 20 Rule 12 of the Civil Procedure Code.

5. The Plaint Facts (filed by the 1st Respondent/Plaintiff):

(i) The suit property originally belonged to one Syed Rahim son of Syed Hussain of Kalkuthirai Tharka Street now known as Kayedhae Millath Street, Tiruvannamalai. His forefathers and himself were in open continuous and uninterrupted possession of the entire 13 acres 68 cents in T.S.No.1625 in Tiruvannamalai Town for more than 300 years. In O.S.No.387 of 1965 decree, their title and possession were recognised [suit filed for declaration and injunction between Syed Rahim, the then plaintiff and Abdul Sheriff and others]. In A.S.No.154 of 1971, the trial Court Judgment and Decree in O.S.No.387 of 1965 dated 28.09.1967 was confirmed by the Learned Subordinate Judge, Tiruvannamalai. The suit register copy of O.S.No.387/65 with a certified copy of the Plaint plan and decree were filed.

(ii) The said Syed Rahim alone was the owner and possessor of entire 13 acres and 68 cents in T.S.No.1625 till his death about two years ago. Four months after the demise of Syed Rahim, his heirs at law orally divided the ent