SEETHAMAL Vs. NARAYANASAMY

JUDGEMENT

(1.) Heard the learned senior counsel for the appellants as also the learned counsel for the respondents and perused the appeal papers.

(2.) At the outset, we note, that the judgment dtd. 30/7/2012 passed by the Madurai Bench of Madras High Court is a common judgment whereunder, the Second Appeal arising under Sec. 100 of the Civil Procedure Code, 1908 in S.A. No.994/1999 and the Regular First Appeal arising under Sec. 96 of the Civil Procedure Code, 1908 in A.S. No.26 of 2004 which warrant different scope of consideration, have been considered and disposed by the common judgment dtd. 30/7/2012.

(3.) In that background, while taking note of the basic facts relating to the contentions put forth, we note that the genesis of the suit, which lead to the Second Appeal in S.A. No. 994 of 1999 was one for declaration and injunction contending that the plaintiffs are entitled to a declaration that they are the absolute owners of the property and consequently, for injunction. Such relief was sought in O.S. No. 268 of 1996 contending that, an oral partition has been effected between the parties by the judgment dtd. 14/9/1998, the suit was dismissed. In the said proceedings, the contention of oral partition was not accepted and the suit filed by the plaintiff was dismissed. The Regular First Appeal against the said judgment was also dismissed through the judgment dtd. 29/1/1999 in F.A. No. 105/1998. It is in that light, a consideration was required to be made in the Regular Second Appeal as against the concurrent finding of fact recorded by the Courts below and consider as to whether the same raised any substantial question of law.