JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree of the learned Additional District Judge-cum-Chief Judicial Magistrate, Sivaganga, dated 11.06.2002 in A.S.No.89 of 2001, reversing the judgment and decree of the learned Subordinate Judge, Sivaganga, dated 20.06.2001 in O.S.No.69 of 1998.)

1. Aggrieved over the judgment of the first Appellate Court, reversing the finding of the Trial Court, the present Second Appeal is filed.

2. The suit has been filed for declaration and for recovery of possession and also for mesne profits.

3. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

4. The facts leading to the filing of the suit are as follows:

One Saradhambal was entitled to the suit property by virtue of the judgment and decree in O.S.No.78 of 1972. The plaintiff has purchased the property from Saradhambal on 21.02.1981 under Ex.A.6 for a consideration of Rs.46,000/-. Before that, Saradhambal said to have executed a settlement deed dated 09.01.1979 in respect of the suit property to one Subbulakshmi alias Pappa (second defendant). The first defendant said to have purchased the property from Subbulakshmi alias Pappa under a registered sale deed dated 27.02.1980. After purchase, the first defendant has filed execution proceedings in E.P.No.28 of 1980 in O.S.No.78 of 1972. In that proceedings, the plaintiff and the tenants were added as respondents. In the meantime, Saradhambal executed a revocation deed on 31.01.1981 under Ex.A.18, cancelling the alleged settlement deed. In the meanwhile, the execution petition filed by the first defendant was allowed by the Execution Court, as against which, appeal was filed and order was set aside by a learned Single Judge of this Court, against which, LPA.No.65 of 1988 was filed by the first defendant before the Division Bench of this Court. However, in the above order, this Court directed re-delivery of the suit property by the plaintiff to the first defendant. Accordingly, property was re-delivered on 11.12.1996 and re-delivery was effected in symbolic manner. However, this Court directed the plaintiff to approach the Civil Court for remedy. Hence, the plaintiff filed the suit.

5. It is the case of the plaintiff that the alleged settlement deed was never executed by Saradhambal in favour of the second defendant. At the relevant point of time, she was in Madras to conduct the proceedings in S.A.No.293 of 1975 and was staying in the house of her granddaughter Vasantha at Madras. The said Vasantha's husband is one Sathiyamoorthi. He has obtained the left thumb impression of the said Saradhambal in several blank papers under the premise that they were required for executing a power deed in his favour. Therefore, settlement deed is a created one. Hence, any sale on the basis of the settlement deed is also not valid. Hence, the suit for declaration and other consequential reliefs.

6. The first defendant has filed a written statement to the effect that the suit is not maintainable and abuse of process of law. The plaintiff, in fact, wants to re-agitate the entire matter once again. The suit is also barred by res judicata. Saradhambal has no right to execute the sale deed in favour of the plaintiff on 21.02.1981. She has already executed a registered settlement deed dated 09.01.1979 in favour of her grandson's wife Subbulakshmi alias Pappa. The said Subbulakshmi alias Pappa, in turn, executed a sale deed in favour of the first defendant on 27.02.1980 for a sum of Rs.40,000/-. The alleged constructive delivery dated 05.04.1982 is also not valid, which has been fraudulently obtained by the plaintiff by suppressing the pendency of E.P.No.28 of 1980 and E.P.No.2 of 1982. Saradhambal has no legal right to execute the cancellation deed revoking the settlement dated 09.01.1979. Settlement deed was executed out of own volition of Saradhambal. Thereafter, the first defendant has purchased