Concurrent findings on oral partition allotment proved by prior suit depositions upheld; no substantial question of law in second appeal.

J U D G M E N T

The defendants are the appellants.

2. The respondents herein filed a suit for declaration of title and recovery of possession. The suit was partly decreed, granting declaration of title and delivery of possession to the respondents/plaintiffs. The appeal filed by the defendants was also dismissed by First Appellate Court by confirming the findings of the trial Court. Hence, challenging the concurrent finding, the appellants/defendants has come before this Court.

3. According to the respondents/plaintiffs, the suit property is originally allotted in family partition to plaintiff's father, defendant's father and their brothers. Subsequently, there was a partition between the plaintiff's father namely Govindasamy Gounder and the defendant's father. In the said oral partition, 78 cents out of total extent of 1.56 acres in S.No.78/4 was allotted to the share of plaintiff's father. Likewise, 20 cents out of 23 cents in S.No.78/5 was allotted to the share of his father. The plaintiff's father had been in possession and enjoyment of the property allotted to his father. After his death, the plaintiff's sister filed a suit for partition in OS No.125 of 1976 seeking partition of the properties including the present suit property, which was shown as item Nos.13 and 14 in the suit filed by the sister of the plaintiff in the suit.

4. It is the further case of the plaintiffs that the defendants encroached the portion of the property allotted to the plaintiffs in S.Nos.78/4 and 78/5. The plaintiffs preferred a police complaint against the defendants. Though the defendants assured to remove the encroachment and hand over possession to the plaintiffs, they failed to do so. Therefore, the plaintiffs filed a plaint for declaration of title and recovery of possession. 5. The appellants/defendants filed a written statement and denied the averment in the plaint as if 78 cents in S.No.78/4 and 20 cents in S.No.78/5 were allotted to the share of the plaintiff's father. Though the defendants admitted the partition as pleaded by the plaintiffs, it is the specific case of the defendants that only 41 cents in S.No.78/4 was allotted to plaintiff's family. Likewise, according to the defendants, only 8 cents in S.No.78/5 was allotted to the plaintiff's family. It was also stated by the defendants that the patta for the suit property stands jointly in the name of the plaintiffs and defendants, and hence they sought for the dismissal of the suit, 6. Before the trial court, the plaintiff was examined as P.W.1 and two other witnesses were examined as P.W.2 and P.W.3. Ten documents were marked on the side of the plaintiffs as Exs.A1 to A10. On behalf of the defendants, the first defendant was examined as D.W.1 and paternal uncle was examined as DW.2. On behalf of the defendants, fourteen documents were marked as Exs.B1 to B14.

7. The trial Court on consideration of evidence available on record came to the conclusion that the plaintiffs proved the allotment of suit properties to their father in the earlier oral partition and hence decreed the suit for declaration and for recovery of possession. Aggrieved by the same, the defendants preferred an appeal in A.S. No.26 of 2014 on the file of the Subordinate Judge, Nagapattinam. The First Appellate Court also confirmed the finding of the trial Court and dismissed the appeal by confirming the judgment and decree passed by the trial Court. Aggrieved by the said concurrent finding, the appellants/plaintiffs preferred the second appeal.

8. The learned counsel appearing for the appellants vehemently contended that the courts below relying on the decree passed in the earlier suit filed by the plaintiff’s sister in O.S.No.125 of 1976 decreed the present suit and the same is not sustainable as the defendants were not made as party to the earlier suit. The learned counsel also submitted that though the plaintiffs c