JUDGMENT :

N. SESHASAYEE, J.

1. The plaintiffs who had lost successively both before the trial Court and the first Appellate Court in their suit for declaration that earmarking of the suit properties which they had purchased as common area in the layout approved as LPTP No. 29/1974 by the Deputy Director of Town and Country Planning is void, are the appellants herein. Parties would be referred to by their rank before the trial court.

2.1. The brief facts as disclosed by the plaint are:

(a) Certain Venugopal Naidu possessed properties in Sy. No. 217/5 and 218/5. In this case, this Court is concerned with the properties in Sy. No. 218/5 measuring 1.15 acres. Venugopal Naidu died sometime in 1964, and he left behind him surviving his second wife Kanthammal and his two sons, Sanjivi Naidu and Ramachandra Naidu who were born to him through his first wife. On the demise of Venugopal Naidu, his widow and sons succeeded to his estate.

(b) While so, Kanthammal, Sanjivi Naidu and Ramachandra Naidu developed the property into a layout and this according to the plaint is said to have taken place sometime in 1973.

(c) While so, on 01.03.1973, under Ext. A.1, sale deed executed by Kanthammal and her co-sharers, the first plaintiff had purchased 5 cents. This plot is described as A schedule property in the plaint. Sometime in 1986, authorities were approached for approving the layout. Thereafter, on 13.01.1992 under Ext. A.40, sale deed, the first plaintiff purchased 3 cents which is described in plaint as B schedule and the second plaintiff had purchased 5 cents under Ext. A.46, dated 13.01.1992 and this plot is described in C schedule.

(d) While so, the plaintiffs faced resistance to their peaceful possession of their respective plots scheduled to in the plaint from the residents of the other plots on the score that in the approved layout, all the three items of suit properties were earmarked for common public utility such as for the use as playground, park and for putting up some shops. Therefore, the plaintiffs have come forward with the present suit for a declaration that notifying the suit properties in the approved layout as common public utility area as bad, and have also sought for a consequential injunction.

2.2. There are as many as 25 defendants, of whom, many are residents of various plots which they purchased after the layout was approved. In the written statement of the first defendant (adopted by defendants 4, 6, 9 to 12, 14, 16, 19 and 20) it was contended that:

(a) The entire property is within Sy. Nos. 217/5 and 218/5 and they include the suit properties. They were developed into a layout and was approved by the Deputy Director, Town and Country Planning, Salem-Cuddalore Division in LPTP No. 29/1974 and that of the 24th defendant, the Municipality in 9268/1974, the suit properties were earmarked for common utility area, that the layout-road have all been surrendered to the Municipality for their maintenance and upkeep. This apart, a writ petition in W.P. No. 1078/1992 has been laid on the same issue against the 24th defendant, the Municipality, and the same is pending.

(b) The 24th defendant-the Municipality did not file any written statement. The 25th defendant/the Tahasildar had filed his written statement, which in the context of the cause of action is inconsequential.

(c) In the replication filed by the plaintiffs, it is asserted that the approval for the layout was granted only to S. No. 217/5 and the layout does not include S. No. 218/5.

3. The trial Court dismissed the suit in entirety. The plaintiffs preferred first appeal in A.S. No. 42 of 2002 before Principal Subordinate Judge, Virudhachalam. The first Appellate Court had entered a finding that the sale under Ext. A.1 was long prior to the approval of the layout and upheld the sale. However, it dismissed the suit as concerning A schedule property on the ground that the first plaintiff has not chosen to seek a declaration of his title when his title was threatened by the act