JUDGMENT

The legal heirs of the deceased plaintiff are before this Court as appellants in the Second Appeal. Originally, the sole plaintiff, one Mr.Ramaswamy Gounder filed the suit seeking declaration of his possessory rights over the suit schedule property. His case before the Trial Court was that he was in possession of 4 items of suit property and he was carrying on cultivation and that the defendants had no right, title or interest over the suit items and that the defendants were openly claiming to encroach into the suit items by using violence. Under such circumstances, the suit for Declaration with a consequential relief of Permanent Injunction, as well as an alternate Relief of Recovery of Possession was filed.

2. The 1st defendant filed his Written Statement and the same was adopted by the 2nd defendant. The defendants contended that they were not concerned with items 1,2 and 4. However, insofar as Item-3 of the suit property was concerned, the defendants set up a plea of an unregistered sale in favour of the 2nd defendant, consequent to which possession was also delivered to the 2nd defendant. It was the further case of the defendants that the 2nd defendant has been in enjoyment and possession of the said Item No.3 of the suit schedule property, and even the Government, recognizing the possession of the 2nd defendant had issued a ‘B’ Memo. The plaintiff’s claim that the plaintiff has been in possession of Item No.3 of the suit scheduled property had been stoutly denied. The suit was therefore sought to be dismissed.

3. Before the Trial Court, the plaintiff examined himself as PW-1, besides examining two independent witnesses as PW-2 and PW-3. On the side of the plaintiff, exhibits A-1 to A-9 were marked. On the side of the defendants, the 1st defendant examined himself as DW-1, 2nd defendant examined herself as DW-2 and two other witnesses were examined as DW-3 and DW-4. On the side of the defendants exhibits B1 to B4 were marked.

4. The Trial Court decreed the suit as prayed for, granting a decree for Declaration and Permanent Injunction.

5. Aggrieved by the same, the defendants filed A.S.No.47 of 2004 before the Additional Sub-Court, Viruthachalam. The said Appeal came to be allowed in so far as Item-3 of the Suit Schedule Properties alone. As against the First Appeal being partly allowed, the legal heirs of the sole plaintiff, since deceased, have filed the present Second Appeal.

6. At the time of admission of this second appeal the following substantial questions of law have been framed.

1. Whether the First Appellate Court was right in reversing the Judgement of the Trial Court without upsetting the findings of the Trial Court with respect to the possession of 3rd Item of suit property?

2. Whether the First Appellate Court is right in accepting the plea of the defendants based on the Unregistered Sale Deed Ex.B1 for Rs.10,000/-?

3. Whether the First Appellate Court is right in arriving at a conclusion that the Government ought to have been made a party, ignoring the fact that the plaintiff sought for the relief admitting the predominant title of the Government?

7. I have heard Mr.V.Anand, counsel for the appellant and Mr.S.Senthilnathan, counsel for the respondents. I have also perused the pleadings, documents and also deposition recorded before the Trial Court and also considered the judgement of the Trial Court as well as the First Appellate Court.

8. After hearing the counsel elaborately, the substantial questions of law are to be recast, for the following reasons:

1. The First Appellate Court has found that the possession of the 3rd Item of the suit property was with the respondents and not the appellants.

Therefore the first question of law does not survive for consideration.

2. Insofar as the third substantial question of law regarding the Government being made as a party, after perusing the judgement of the First Appellate Court, I do not find that the non-impleadment of the Government has been the reason for allowing