JUDGMENT

The plaintiff in O.S No.210 of 2003 on the file of the II Additional District Munsif Court, Kuzhithurai is the appellant in this second appeal. The case of the plaintiff is that the suit property originally belonged to one Gnanaprakasam. Following his demise, it devolved on his son Muthan Sabarimuthan. The said Muthan Sabarimuthan married one Thirasammal. Thirasammal obtained maintenance decree against Muthan Sabarimuthan in O.S No.385 of 1984. She filed EP No.8 of 1990 for enforcing the decree. The suit property was sold in court auction sale. The plaintiff purchased the same. Sale deed was executed and delivery was taken on 22.01.1998. Since the second wife and children of the said Muthan Sabarimuthan were interfering with the plaintiff's possession and enjoyment, the present suit came to be laid. Muthan Sabarimuthan was also shown as the fourth defendant. In order to have a comprehensive relief, the suit for declaration of title and possession and consequential enjoyment was filed. Muthan Sabarimuthan remained exparte while his second wife and children contested the suit. They filed written statement claiming that the property belonged to Sesumariyayi, the mother of Muthan Sabarimuthan and that the purchase by the plaintiff was in respect of some other property. According to them, the suit property belonging to Sesumariyayi was not purchased in the court auction sale. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff examined himself as PW.1. Thirasammal was examined as PW.2. D1 and D2 examined themselves as DW.1 and DW.2. Exs.A1 to A5 were marked on the side of the plaintiff and Exs.B1 to B20 were marked by the defendants. After consideration of the evidence on record, the trial court by judgment and decree dated 22.02.2007 decreed the suit as prayed for. Aggrieved by the same, the contesting defendants filed A.S No.56 of 2007 before the Sub Court, Kuzhithurai. By the impugned judgment and decree dated 18.12.2009, the first appellate court reversed the decision of the trial court and allowed the appeal and dismissed the suit. It also allowed the plaintiff to mark additional evidence. Challenging the same, this second appeal has been filed. The second appeal was admitted on

05.08.2010 by framing the following substantial questions of law :

“1.Is the first appellate court is correct and justified in modifying the decree of the trial court when the same issue has already been decided in an earlier proceedings is not the defence taken by the defendants/respondents herein is barred by Section 11(d) of the Civil Procedure Code (ie.,) constructive resjudicata?

2.Is the first appellate court is correct and justified in coming to a different conclusion having found that there is no dispute regarding the identity of the property?

3.Is the first appellate court is correct in dismissing the suit that when the auction has become final under Ex.A1 and Ex.A2 and delivery was taken on 22.01.1997 itself and the plaintiff has become the owner of the property from the said date ?

4.Is the first appellate court is correct in modifying the decree having coming to the conclusion that the wrong mentioning of the survey number is not fatal when the properties are rightly identified by boundaries and the boundaries will prevail over the extent?”

2.The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court.

3.Per contra, the learned counsel appearing for the contesting respondents submitted that the impugned judgment and decree do not call for any interference. He reiterated the reasoning of the first appellate court in support of his contentions.

4.I carefully considered the rival contentions and went through the evidence on record. There is no dispute that the fo