(Prayer:Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgement and Decree dated 05.12.2014 made in A.S.No.109 of 2012 on the file of sub-Court, Sivagangai, confirming the Judgment and Decree dated 04.09.2012 made in O.S.No.127 of 2009 on the file of the District Munsif Court, Siavagangai.)
1. The unsuccessful plaintiff before the Courts below is the appellant in the above second appeal.
2. The brief facts necessary for disposal of this appeal are as follows:
2.1. The plaintiff/appellant filed a suit for declaration of title and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property. It is the case of the appellant that the suit property belongs to the plaintiff's mother, one Oyyammal D/o.Periyakaruppan. According to the plaintiff, the suit property was given to her mother as Stridhana by her father. Since the patta was issued in the name of the plaintiff's mother, the revenue records even during UDR scheme were updated in her name. After the death of his mother, the plaintiff contended that the property absolutely belongs to the plaintiff and the defendant, who is an utter stranger to the suit property is making an attempt to the enjoyment of the property.
2.2. The contention of the defendant/respondent is that the suit property belongs to the defendant's mother and that the name of the plaintiff's mother and the defendant's mother being the same the plaintiff is making an attempt to claim title on the basis of revenue records.
2.3. It is also a specific case of the defendant that the suit property originally belonged to Rama.Periyakaruppan Son of Ramasamy and that the same was inherited by his three daughters namely Kathayee, Kaliyammal and Oyyammal. Oyyammal is the defendant's mother. The plaintiff's family was living far away from the village and that the plaintiff was never in enjoyment of the suit property.
2.4. It was also pleaded by the defendant that there was a partition among the three daughters of Rama.Periyakaruppan and that the suit property was allotted to the mother of the defendant. It was the specific case of defendant that the remaining 2/3 shares of the land belonged to his grandfather was allotted to the other two sisters of his mother namely Kaliammal and Kathayee.
2.5. The trial Court has framed necessary issues and dismissed the suit. Thereafter, the appellant filed A.S.No.85 of 2010 and by judgment dated 23.02.2012, the appeal was allowed and the matter was remitted back for fresh trial with a direction to give an opportunity to both sides for production of oral and documentary evidence.
2.6. After remand, the plaintiff filed a proof affidavit and Exs.A4 to A9 were marked. However, the defendant/respondent did not let in any further evidence.
2.7. Even after the remand, the trial Court after considering both the oral and documentary evidence found that the suit property originally belonged to the mother of the defendant and that the plaintiff's mother Oyyammal is not a daughter of the original owner of the Rama.Periyakaruppan. The plaintiff filed an appeal against the judgment and decree of the trial Court and the appellate Court also fell in line with the judgment of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the above second appeal is filed before this Court.
3. The Courts below have given a specific finding with regard to the title in favour of the mother of the defendant Oyyammal, daughter of Periyakaruppan S/o Ramasamy.
4. After remand, though the plaintiff filed Exs.A4 to A9, it is admitted by the plaintiff that Exs.A7 to A9 are not pertaining to the suit property and that these documents were produced only to prove the fact that Oyyammal is the mother of the plaintiff. Exs.A5 and A6 are the kist receipts. The document Ex.A4 is only a partition deed between the appellant and his brother which was entered into just four days prior to suit.
5. The Courts below considered the oral evidence of the plaintiff, who was examined as PW1 and PW2 as well. It is also admitted by both the witnesses that the property on the north of the suit property belongs to Kathayee and that on the South of suit property, the land belonged to one Kaliammal is located. The petitioner further admitted in his evidence that he did not know who is Periyakaruppan and that he did not know the original owner of the suit property.
6. Admittedly, the property on the southern side of the suit property belonged to one Kaliyammal, the other sister of the defendant's mother. Since these facts are admitted by the plaintiff's witnesses, the Courts below have accepted the case of the defendant that the suit property belonged to the grandfather of the defendant one Periyakaruppan S/o.Ramasamy and that he died leaving his three daughters.
7. It is pertinent to mention that the settlement record has been relied upon by Courts below to show that the grandfather of the defendant is the original owner. Ex.P1 would clearly prove the title of the defendant's grandfather. Very importantly, the lower appellate Court has considered the testimony of the plaintiff as PW.1 to the effect that he does not know about the ownership of the property, even though he claimed that the property was given to his mother as Stridhana. Even with regard to possession, both Courts found that the plaintiff has not proved his possession.
8. The learned Counsel for the appellant strenuously argued that the Courts below have not considered the scope of remand and hence, the judgment and decree of the Courts below are vitiated. Going by the records, it is noticed that the trial Court has referred to the order of the appellate Court, whereby the matter was remitted to the lower Court. It gives an indication that the lower appellate Court on the earlier occasion had remitted the matter to give an opportunity to both sides to adduce evidence.
9. It is not in dispute that the trial was conducted de nova and opportunities were given to both parties to let in evidence. In such circumstances, there is no merit in the said contention.
10. The learned Counsel for the appellant also attacked the findings of the lower appellate Court regarding the additional documents produced by the appellant before the lower Court. As pointed out earlier, Exs.A7 to A9 are not documents pertaining to the suit property. Even as per the admission of the plaintiff during the course of evidence, the documents marked as Exs.A.5 and A.6 are only the kist receipts and hence, there is no merit in the submission having regard to the specific findings of the Courts below on the question of title and enjoyment.
11. The appellate Court has applied its mind independently to decide the appeal and hence, the argument of the learned Counsel for the appellant that the appellate Court has not considered the scope of remand, is not sustainable. No where in the grounds or during the course of argument, the learned Counsel for the appellant pointed out how the Courts below have failed to follow the order of remand. Hence, I find that there is no question of law arise for consideration in this second appeal.
12. In the result, this second appeal is dismissed. No costs. Consequently, the connected Miscellaneous petition is also dismissed.