S A THIRUMAL THEVAR Vs. KAMALAMMAL

JUDGEMENT

(1.) 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.) 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.