The Second Appeal has been preferred by the defendants in the suit and they are the appellants in A.S.No.354 of 1987 on the file of the VI Additional City Civil Judge, Chennai. The Judgment and Decree dated 06.03.1987 passed by the XIII Assistant City Civil Judge, Chennai, in O.S.No.8333 of 1981 had been confirmed and the appeal was dismissed by the appellate Court.
2. It is an admitted fact that one Somu Thevar had filed the suit in O.S.No.8333 of 1981, seeking delivery of possession of the suit house against his son S.A. Thirumal Thevar, the first appellant herein and two others. After the trial, the suit was decreed by the trial Court by judgment dated 06.03.1987. Aggrieved by which, the appellants herein preferred an appeal before XI Additional City Civil Court, confirming the judgment and decree the appeal was dismissed by the said Court. Aggrieved by which, second appeal in S.A.No.622 of 1988 was filed by the appellants herein. This Court by judgment dated 24.07.2001 allowed the second appeal and remanded the matter back to the lower appellate Court for fresh disposal. It is not in dispute that this Court by judgment dated 24.07.2001 had set aside the judgment rendered by the lower appellate Court. After the remand, the first appellate Court has passed the impugned judgment on 26.02.2002. Aggrieved by which, the second appeal has been preferred by the appellants/defendants.
3. In the second appeal the following substantial question of law has been raised by the appellants herein:
" Whether having found that the possession of the suit property is with the appellants and in as much as the plaintiff died and having held that the first appellant is the son of the plaintiff, the Lower Appellate Court would have referred the appellants to file a partition suit?"
4. Mr. S.V. Jayaraman, the learned senior counsel appearing for the appellants herein, drew the attention of this Court to the impugned judgment dated 26.02.2002 passed by the Court below, wherein, the second point for determination as framed is whether the appellants are entitled to delivery of possession of the property. In paragraph No.8 of the impugned judgment, the Court below has held that since, Somu Thevar died the first appellant/first defendant being his son and one of the legal heirs of the said deceased, was entitled to his share in the property left by Somu Thevar, who had been the plaintiff in the suit. The Court has held that the defendants are in possession and enjoyment of the property and hence the respondents are not entitled to delivery of possession of the suit property without establishing their title to the property and further held that the remedy open to the respondents herein is to seek partition and separate possession of their share in the property. The Court has held that the suit property belonged to Somu Thevar and hence partition would be the appropriate remedy since the first appellant is one of the legal heirs of the deceased. However, the appeal was dismissed by the Court below. Learned senior counsel appearing for the appellants contended that having held that the first appellant being the son of the deceased Somu Thevar was entitled to his share by way of partition, the Court below could not have dismissed the appeal preferred by the appellants herein.
5. Per Contra, Mr.A.Radha Krishnan, learned counsel appearing for the respondents herein submitted that subsequently Somu Thevar executed a Settlement deed in favour of the respondents 4 &5 and therefore they are entitled to the entire property. However, no such document was marked before the trial Court or before the first appellate Court by the respondents and further, without marking the document and establishing the genuineness and legality of the alleged document, the respondents cannot raise their defence disputing the right of the other shares. Having found that the first appellant is also entitled to a share as one of the legal heirs of the deceased Somu Thevar and the remedy would be partition and separate possession of the property, the Court below could not have dismissed the appeal. Hence the impugned judgment and decree passed in A.S. No.354 of 1987 is self-contradictory and against the findings of the court below.
6. On the aforesaid facts and circumstances, I answered the substantial question of law framed in the second appeal in favour of the appellants and against the respondents. Accordingly, the appeal has to be allowed and impugned judgment and decree passed by the first appellate Court are to be set aside, since both the first appellant and the respondents 1 to 5 are class-I legal heirs of the deceased Somu Thevar, who was the plaintiff in the suit. The suit seeking recovery of possession of the suit property has to be dismissed since, neither the appellants nor the respondents can claim exclusive title to the suit property, after the demise of Somu Thevar without establishing their exclusive right, when the property is in the possession and enjoyment of the first appellant herein, who is also a legal heir of the deceased.
7. It is admitted by the both learned counsel that there are possibilities for settlement, between the parties. The partition of the property has to be worked out and they can seek the remedy as per procedure known to law, which cannot be decided in the second appeal, unless there is mutual consent between the Parties Similarly, the genuineness and validity of the alleged Settlement Deed executed by Somu Thevar in favour of the respondents 4 & 5 herein, cannot be decided in the second appeal, since it requires evidence. Hence the short point has to be decided in the second appeal is whether the impugned judgment and decree dated 26.02.2002 passed by the court below has to be set aside on the ground that the same is self-contradictory. Having found that the remedy available to the parties as partition, the court below could not have dismissed the appeal and therefore, having answered to the substantial question of law in favour of the appellants, I found it just and reasonable to allow the appeal and set aside the judgment and decree passed by both the Courts below. Accordingly, this second appeal is allowed and the judgment and decree passed by the courts below is set aside. It is open to the both parties to seek their remedy for partition and separate possession or any other remedy as per the procedure known to law. Both the Parties are directed to bear their own costs in the second appeal.
krk