JUDGMENT :

The plaintiff is the appellant herein.

2. The plaintiff filed O.S.No.9 of 1999 before the District Munsif Court, Pattukottai for the relief of declaration that suit 'A' schedule property belongs to the plaintiff and defendants 3 to 6 and for recovery of possession from the first defendant. The plaintiff also prayed for a declaration that the plaintiff and defendants 3 to 6 are the owners of the 'B' schedule property and sought injunction as against the defendants 1, 2 and 7 from interfering with peaceful possession and enjoyment of the suit 'B' schedule property.

3. The trial court dismissed the suit with regard to 'A' schedule property and granted a decree for 'B' schedule property as prayed for. The plaintiff filed an appeal for the disallowed portion namely the prayer for declaration of title and recovery of possession for 'A' schedule property. No first appeal was filed by the defendants challenging the decree granted in favour of the plaintiff for 'B' schedule property. The First Appellate Court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the trial Court over 'A' schedule property. As against the same, the plaintiff has filed the present second appeal.

4. The plaintiff had contended that the plaintiff and defendants 3 to 6 were allotted 50 cents in Survey No.107/7B in the final decree proceedings in O.S.No.479 of 1978 which is marked as Exhibit A1. According to the plaintiff, defendants 1 and 2 were not allotted any share in the said final decree proceedings. The plaintiff further contended that the first defendant had executed a registered sale deed in favour of the 7th defendant for an extent of 23 1/3 cents under Exhibit A5 on 08.07.1988. The said sale deed is void. The plaintiff further contended that the first defendant had encroached upon a portion of 50 cents that was allotted in favour of the plaintiff and defendants 3 to 6 and hence, sought for recovery of possession. The plaintiff further contended that the portion encroached by the first defendant is for an extent of 840 square links which is shown as 'A' schedule property and the balance of the property allotted in the final decree namely 49 cents 160 square links is shown ad 'B' schedule property.

5. The trial Court after considering the oral and documentary evidence, granted a decree for 'B' schedule property holding that the said property was allotted in favour of the plaintiff and defendants 3 to 6 in the final decree proceedings under Exhibit A1 and decreed the suit as prayed for with regard to 'B' schedule property. However, the trial Court dismissed the suit with regard to 'A' schedule property on the ground that even though defendants 1 and 2 were not allotted any share in the final decree due to non-payment of Court fee, their entitlement to a share in the said property cannot be disputed. On the said ground, the trial Court has dismissed the suit for 'A' schedule property.

6. The First Appellate Court though came to a conclusion that the first defendant is not entitled to execute exhibit A5 sale deed, arrived at a finding that the purchaser under Exhibit A5 has to file an independent suit for partition to establish his rights. However, confirmed the findings of the trial Court with regard to 'A' schedule property on the ground that the plaintiff will not be entitled to seek recovery of possession of a property in which the first defendant is having a share. Challenging the said judgment and decree, the present second appeal has been filed.

7. The second appeal was admitted on the following substantial questions of law:

“(a) whether the judgment and decree of the Courts below are sustainable in law, when the suit A schedule property which forms part of the B schedule have been allotted to the appellant in the final decree proceedings made in O.S.No.479 of 1998 marked as Exhibit A2 and when the first respondent has not objected to the allotment and handing over of the possession of the same to the appellant und