Judgment : 1. The defendants 1 to 3 in O.S.No.193 of 1996 on the file of the Principal District Munsif, Arani have preferred the second appeal, aggrieved against the judgment and decree passed by the learned Subordinate Judge, Arani, Thiruvannamalai District, dated 13.11.1999 in A.S.No.50 of 1997 allowing the appeal partly and setting aside the judgment and decree of the trial Court dated 4.4.1997. 2. Thecase in brief is as follows: The plaintiff filed a suit for declaration and for recovery of possession of the property as well as mesne profits. D-4 and one Velu Gounder are the sons of Ramasamy Gounder and they were members of Hindu undivided family. Ramasamy Gounder died long back. Velu Gounder and D-4 orally divided the property some 30 years back and the suit property fell to the share of D-4. Velu Gounder also died some 10 years back. D-4 had no male issues and therefore, he was staying in the house of his father-in-law. D-1 to D-3 are the children of Velu Gounder. D-4 had entrusted D-1 to D-3 to look after the agricultural work relating to his lands. D-4 used to come to the village often and he was also staying in the house bearing door No.10. D-4 used to give money for meeting agricultural expenses as well as payment of kist, etc. He used to be present even at the time of harvest. For the last 30 years D-4 had been enjoying the property through D-1 to D-3 and he had also perfected the title by adverse possession. Patta was also granted in the name of D-4. He wanted to perform the marriage of his daughter and to meet the marriage expenses as well as family expenses, he wanted to dispose the property. D-4 offered the property for sale to D-1 to D-3. But, as they were not willing, D-4 subsequently sold the property in favour of the plaintiff for a sum of Rs.25,500 under a registered document dated 16.5.1995. D-1 sent a notice on 5.6.1995 containing false allegations. D-1 to D-3 had also filed separate suit in O.S.No.555 of 1995 with reference to the same property against the plaintiff and others. D-1 to D-3 have no right to remain in possession of the property and as the plaintiff is a valid purchaser for proper consideration, he is entitled to declaration as well as recovery of possession and mesne profits. 3. D-1 to D-3 have no right to remain in possession of the property and as the plaintiff is a valid purchaser for proper consideration, he is entitled to declaration as well as recovery of possession and mesne profits. 3. D-1 to D-3 resisted the suit and admitted the relationship of the parties. According to them, D-4, after marriage some 45 years back, went to the house of his father-in-law and he had orally gifted his 1/6 share in favour of his brother Velu Gounder and ever since the death, Velu Gounder was enjoying the properties and after his death in 1986 his legal heirs D-1 to D-3 are enjoying the properties. They alone are cultivating the property in their own right and D-4 never visited the place. Patta has been wrongly given in the name of D-4. There was Panchayat in the village and D-4 approached for financial help to perform the marriage of his daughter and in view of the Panchayat only to purchase peace they have paid a substantial amount to D-4. However, D-4 had no right in the property and he cannot sell the property to the plaintiff. D-4 has not prescribed his title to the property for Management with D-1 to D-3 or any other person. The plaintiff has purchased only litigation. 4. The trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.50 of 1997 and the same was allowed by the Sub Court setting aside the judgment and decree of the trial Court and aggrieved against this, D-1 to D-3 have preferred the second appeal. 5. Theappellants/D-1 to D-3 have raised the following substantial questions of law: (i) whether the first appellate Court erred in law in reversing the judgment of the trial Court without deciding the question whether the respondent is in physical possession of the suit property. (ii) Whether the first appellate Court erred in law in reversing the judgment of the trial Court when the respondent herein has not proved that consideration was passed for the purchase of suit property. (iii) Whether the first appellate Court erred in law relying upon Exs.B-5 and B-6, which are not binding upon the appellants herein. 6. Thepoints that arise for consideration in the second appeal are: (i) Whether the plaintiff is entitled to the relief of declaration of title to the suit property. (iii) Whether the first appellate Court erred in law relying upon Exs.B-5 and B-6, which are not binding upon the appellants herein. 6. Thepoints that arise for consideration in the second appeal are: (i) Whether the plaintiff is entitled to the relief of declaration of title to the suit property. (ii) Whether the plaintiff is entitled to get recovery of possession from D-1 to D-3. (iii) To what relief. 7. Points: It is not in dispute that the plaintiff filed a suit for declaration as well as recovery of possession of the property. The plaintiff is said to have purchased the property from D-4 for a valid consideration. D-4 and Velu Gounder are the sons of Ramasamy Gounder are not in dispute. According to the plaintiff, there was oral partition between D-4 and his brother some 30 years back and the suit property fell to the share of D-4 and he had entrusted the work of management of the properties with D-1 to D-3 as he was residing in the house of his father-in-law. D-4 had only daughter and no male children. D-4 used to come to the village often and gave money to D-1 to D-3 for the purpose of meeting agricultural expenses and also used to be present at the time of harvest and patta was also granted in the name of D-4. He wanted to perform the marriage of his daughter and for that purpose only he sold the suit property to the plaintiff. On the other hand, the appellants mainly contended that some 40 years back after marriage D-4 went and settled in his father-in-laws place and orally sold away the property to Velu Gounder and ever since the death, they are in possession of the property. 8. The burden is only upon the defendants 1 to 3 to establish that D-1 had orally gifted the property or sold away the property to Velu Gounder some 40 years back. The evidence of D.Ws.1 to 3 is not consistent. At one point of time, it is stated that D-4 orally sold away the property, but subsequently, it was stated that there was Panchayat and in the Panchayat, he was paid Rs.18,000 and the property was given to them. There is absolutely no record to show that any Panchayat was held. The evidence of D.Ws.1 to 3 is not consistent. At one point of time, it is stated that D-4 orally sold away the property, but subsequently, it was stated that there was Panchayat and in the Panchayat, he was paid Rs.18,000 and the property was given to them. There is absolutely no record to show that any Panchayat was held. The evidence also appears to be hear say about the oral gift by D-4 some 40 years back. It is only under such circumstances, the lower Appellate Court came to the conclusion that the evidence adduced on the side of the appellants is not consistent and they have failed to establish about the alleged oral sale or oral gift relating to the suit property in favour of Velu Gounder. The documents relied on by the appellants also stood only in the name of D-4. If the property was passed on to the hands of the appellants as contended by them, they would not have failed to transfer the assessment in their name. In fact patta was also granted only in the name of D-4 and the appellants have not taken any steps to cancel the same. This would only falsify the case of the appellants relating to oral gift or oral sale. 9. It is alsopertinent to point out that the appellants issued a notice under Ex.A-1 as early as 1995, wherein the title in favour of D-4 was conceded and further disclosed that as sum of Rs.17,750 has been paid by way of advance to D-4 to purchase the property and the balance of Rs.8,750 alone is payable and they are ready to pay the same. This is one more circumstance to show that the appellants themselves admitted the title of D-4 relating to the property and now they are estopped from contending that even 40 years back D-4 had either orally gift the property or orally sold the property in favour or their father. Further the appellants have also not filed any record to show the payment of Rs.17,750 into the Court. When the right, title and interest of D-4 has been conceded by the appellants in their own documents, now they cannot turn round and contend that D-4 had no right in the property and the sale by him in favour of the plaintiff is not valid. When the right, title and interest of D-4 has been conceded by the appellants in their own documents, now they cannot turn round and contend that D-4 had no right in the property and the sale by him in favour of the plaintiff is not valid. Only under the said circumstances, the lower appellate Court rightly came to the conclusion that the appellants have failed to establish the oral sale or oral gift of the property by D-4, but, on the other hand the plaintiffs had established that D-4 had title to the property and it was sold for valid consideration in his favour. The appreciation of evidence by the lower appellate Court is proper and correct. The plaintiff has positively established his title to the property and at the same time, the appellants have failed to establish the theory of adverse possession also. 10. The learned counsel for the plaintiffs further contended that the present appeal filed by the appellants is also barred on the principle of res judicata. It is admitted that the appellants themselves filed O.S.No.555 of 1995 relating to the very some property for permanent injunction and the same was dismissed by the trial Court. The appellants did not file any first appeal and as such the judgment and decree of the trial Court has become final and conclusive. The plaintiff filed O.S.No.193 of 1996 for declaration and recovery of possession and mesne profits with reference to the same property against the appellants and the trial Court dismissed the suit and the appeal filed by the plaintiff was allowed. The learned counsel for the plaintiff mainly contended that when there is already a finding of dismissal against the appellants in the suit filed by them in O.S.No.555 of 1995 they are barred on the principle of res judicata and they cannot file the present second appeal. I am of the view that there is some force in the contention of the learned counsel for the plaintiff/ first respondent. However, the learned counsel for the appellants conceded that no first appeal was filed against the judgment and decree in O.S.No.555 of 1995 and hence, the question of preferring second appeal in that suit does not arise. 11. I am of the view that there is some force in the contention of the learned counsel for the plaintiff/ first respondent. However, the learned counsel for the appellants conceded that no first appeal was filed against the judgment and decree in O.S.No.555 of 1995 and hence, the question of preferring second appeal in that suit does not arise. 11. The learned counsel for the plaintiff/ first respondent relied on M.Subramania Mudaliar v. Janardhanan M.Subramania Mudaliar v. Janardhanan M.Subramania Mudaliar v. Janardhanan (1993)2 L.W. 209 a Bench Decision of this Court, wherein it is held that plea raised by respondents, that on account of rejection of another appeal consequent to delay in its filing not being condoned by the Court the present appeal should be dismissed as barred by res judicata, and it was up held. 12. They also relied upon another decision in D.Krishnamurthi v. Parasuraman D.Krishnamurthi v. Parasuraman D.Krishnamurthi v. Parasuraman (1993)2 MLJ. 674 that if two suits are filed in which issue relating to title was framed, one suit decreed and the other dismissed and if no appeal was filed from decree in one suit, the appeal against the other decree is also barred on the principle of res judicata. 13. Reliance is also placed upon another decision reported Khaja Mohideen v. Mohideen Batcha (1979)1 MLJ. 307: A.I.R. 1979 Mad. 155 wherein joint trial of cross-suits between the same parties, one suit is for injunction and the other suit is for possession the subject matter and question of ownership was common in both suits, wherein 2 decrees were passed, but appeal was filed only against one decree and as such the other decree will operate as res judicata. The same view has been reiterated in Arumugha Nainar v. Lakshmana Perumal (1992)1 MLJ. 457 also. In view of the position of law, it is manifestly clear that the appellants are barred from filing the second appeal on the principle of res judicata. 14. The learned counsel for the appellants further contended that the plea of res judicata was not raised by the learned counsel for the plaintiff at any point of time and as such now it cannot be considered. 14. The learned counsel for the appellants further contended that the plea of res judicata was not raised by the learned counsel for the plaintiff at any point of time and as such now it cannot be considered. As adverted to already the appellants failed to prefer any appeal against the judgment and decree in O.S.No.555 of 1995, but on the other hand the plaintiff alone preferred a first appeal aggrieved against the judgment and decree in O.S.No.193 of 1996. Only now time has come for the plaintiff to raise the plea of res judicata as the appellants have failed to prefer the first appeal against the judgment and decree in O.S.No.555 of 1995. Moreover, a legal plea can be raised at any point of time and there may not be any bar to raise such plea. Hence, I hold that the appellants have failed to establish that they have got title to the property, but, on the other hand, the plaintiff has positively established that he has got title to the property and as such he is entitled to recovery of possession. The lower appellate Court has correctly appreciated the evidence as well, as the documents and there is no illegality or infirmity in the order calling for interference. Hence, the points are answered accordingly. 15. For the reasons stated above, the second appeal fails and is dismissed with costs. C.M.P. No.7998 of 2000 is also dismissed.