IMPORTANT POINT
First Appellate Court is last Court to decide factual aspects of case – First Appellate Court can reconsider all questions of fact and law dealt by Trial Court.

JUDGMENT

The appellant herein is the plaintiff and the respondents herein are the defendants before the Court below.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The brief facts, leading to the filing of this Second Appeal, are as follows:—

Originally the suit was instituted by one Periannan, and after his demise his son was impleaded as second plaintiff. According to the plaint pleading, originally the suit property belongs to the plaintiffs and their predecessor in title and their ownership could be inferred by the registered mortgage deed executed by one Karuppaiah Ambalam on 03.10.1961. According to the plaintiffs, in the said mortgage deed, a reference was made about the ownership of the plaintiff’s predecessor in title over the suit property. It is the further submission of the plaintiff that, they have perfected title by way of adverse possession. Even the revenue records in respect of the suit property stands in the name of deceased – first plaintiff. According to the plaintiff, since the defendant refused to issue patta in the name of the deceased first plaintiff, he moved a writ petition in W.P. (MD)No.19267 of 2011 and got direction against the defendants, to consider the application made by the plaintiff. However, without conducting any proper enquiry, vide proceedings, dated 18.07.2014, the defendants refused to issue patta in the name of the plaintiff. This plaintiff would submit that they have been in continuous physical possession and enjoyment of the suit property. Therefore, prayed to declare that the suit property belongs to them and for other reliefs.

4. The said suit was resisted by the defendants by contending that, the suit property in S.No.141/6, with an extend of 0.01.37 Hectare is classified as “vacant site”. It is the further submission of the defendants that on western side of the vacant site, 10 feet common passage exist. This defendants would further submit that since the suit property classified as the “vacant site”, no patta could be granted to the plaintiff and they would further submit that a portion of the suit property was also used as the public passage. Therefore, this defendants prayed to dismiss the suit.

5. Before the trial Court, the suit was disposed of along with another suit in O.S.No.54 of 2015.

6. Before the trial Court, on behalf of the plaintiff one witness was examined as P.W.1 and marked 11 documents as Ex.A1 to Ex.A11. On behalf of the defendants, 3 witnesses were examined as D.W.1 to D.W.3 and 18 documents were marked as Ex.B1 to Ex.B18. As third party documents, 3 documents were marked as Ex.X1 and Ex.X2. Two documents were marked as Court documents in Ex.C1 and Ex.C2.

7. After considering the pleadings, material on record and evidence, the trial Court has dismissed the suit on the ground that after the demise of the first plaintiff’s, the sister of the second defendant were not impleaded as a party to the suit. Hence, on the ground of non joinder of necessary party, the suit was dismissed.

8. Aggrieved with the order of the trial Court, the plaintiff / appellant has filed an appeal in A.S.No.19 of 2017. However, the first Appellate Court has confirmed the trial Court decree and dismissed the appeal on 02.02.2018.

9. Against the concurrent finding, the plaintiff / appellant has come up before this Court by way of this Second Appeal.

10. While filing the Second Appeal, the appellant has proposed the following substantial questions of law:—

“(a) Whether the Court below lost its sight as to well settled principle of law that Grama Natham land never vest with Government and the same vest with person who is in the possession and enjoyment and in the instant case with appellant?

(b) Whether the Courts below are justified in placing the burden of proof on the appellant /plaintiff in as much as it is admitted that the suit property is Grama Natham and that the same is in the possession and enjoyment of plaintiffs ancestr