JUDGMENT :

R. Subramanian, J.

1. The plaintiff in O.S. No. 103 of 2008, a suit for declaration and recovery of possession, has come with this second appeal, since the suit was dismissed by the trial Court and the same was confirmed by the appellate Court in A.S. No. 34 of 2012.

2. The plaintiff has filed the suit for declaration of title claiming that the suit property was allotted to him at a partition, that took place between him and his brothers, on 05.05.1970. The plaintiff would also plead that a portion of the land, i.e., about 23 cents was acquired by the Government and the first defendant has received the compensation taking advantage of the fact that the sale certificate issued by the Government in respect of the said land stood in his father's name. The sale by the first defendant in favour of the second defendant was also termed as invalid, since the property was allotted to the plaintiff at a partition, where the father of the first defendant, Mohideen Pitchai, in whose name, the sale certificate has been issued, was party. The plaintiff has also disclosed the fact that he had earlier filed a suit in O.S. No. 370 of 2001 seeking permanent injunction and its dismissal.

3. The suit was resisted by the defendants contending that the suit is barred by res judicata in view of the findings rendered in O.S. No. 370 of 2001. It was also contended that the plaintiff is estopped from claiming title to the remaining extent of the property, in view of the dismissal of the earlier suit. The second defendant would trace his title through first defendant, who in turn, claimed title under his father, Mohideen Pitchai, who had purchased the property at an auction held by the Government in the year 1962.

4. At trial, the plaintiff was examined as PW-1 and Ex-A 1 to Ex-A7 were marked. The first defendant was examined as DW-1 and Ex-B1 to Ex-B25 were marked.

5. The trial Court, upon consideration of the evidence on record, concluded that in view of the Ex-B2, the sale certificate, issued in favour of the first defendant's father, the first defendant would be the absolute owner of the property and the sale by the first defendant in favour of the second defendant is valid. The trial Court also concluded that the partition deed, dated 05.05.1970 was not acted upon. The trial Court rejected the claim of the defendants that the suit is barred by res judicata and estoppel.

6. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal in A.S. No. 34 of 2012. The appellate Court, upon re-examination of the evidence, concurred with the findings of the trial Court and dismissed the appeal. Hence, the above second appeal.

7. The following substantial questions of law were framed at the time of admitting the second appeal:

"1. Whether the judgments and decree of the Courts below could be sustained in law in rendering a finding with regard to the document under Ex. A.8, the partition deed dated 05.05.1970 on mere surmises and conjectures absolutely without any cogent evidence or even a pleading?

2. Whether the Courts below are right in law in holding that the documents under Ex. A.8 has not been acted upon without adverting that it is not even the very plea of the respondents, besides, it is not permissible under law to contend contrary to the very recitals of the registered document under Ex. A.8 in view of Section 92 of the Indian Evidence Act?

3. Whether the Courts below are right in law in declining to grant a decree after having held that the earlier proceedings under Ex. A. 1 & A.2 will not constitute res judicata as per Section 11 of C.P.C. as well as will not attract the bar provided under Order 2, Rule 2?

4. Whether the Courts below are right in law in dismissing the suit without adverting that the appellant as plaintiff has substantiated his plea on the basis of cogent evidence under Ex. A.2 to A.8 corroborating the oral testimony of P.W. 1?

5. Whether the Courts below are right in law in rendering a finding traversing beyond the plead