JUDGMENT: The parties will be referred to as per their ranks in the suit. 2. Defendants 4 and 5 in O.S.No.934 of 1979 on the file of the learned Principal District Munsif, Tindivanam, are the appellants in the second appeal. The suit was filed by the first respondent herein for declaration of his title to 8 items of properties and for permanent injunction restraining the defendants from interfering with his possession of the suit properties. 3. The first defendant, who died pending suit, was his father. The second defendant is his mother. The third defendant is his brother. The fourth and the fifth defendants, who are the appellants herein, are brothers being sons of one Govindaraja Pillai. Defendants 6 and 7 are third parties. Defendants 8 and 9 are sisters having come on record on the death of the first defendant. Defendants 2, 3 and 6 to 9 are respondents 2 to 7 in the second appeal. 4. The case of the first respondent was as follows: The suit properties and other properties belonged to the erstwhile joint family consisting of the plaintiff, his father deceased first defendant, and his brother the third defendant. There was a family arrangement entered into on 25.7.1972 and a registered partition deed came into existence on the same day as per the terms of which the suit properties were allotted to the share of the plaintiff, first respondent. Ever since the date of partition, he was in possession and enjoyment by paying kist in his own right. The deceased first defendant was given a mere right to enjoy suit Item 2 without any power of alienation in lieu of maintenance. However, since he was not in a position to cultivate the said item, he had allowed the plaintiff/ first respondent to enjoy the said item, subject to his maintaining the first defendant out of the income. Defendants 4 and 5 were exploiting the misunderstanding that had arisen between the plaintiff on the one hand and defendants 1 to 3 on the other and joined the camp of defendants 1 to 3. They had been set up to claim false rights in the suit properties. Equally, defendants 6 and 7, who were strangers to the family, had also been set up by defendants 1 to 3 to dispute the plaintiff’s claim. They had been set up to claim false rights in the suit properties. Equally, defendants 6 and 7, who were strangers to the family, had also been set up by defendants 1 to 3 to dispute the plaintiff’s claim. Since 17.7.1979 the defendants joined together and were disturbing the peaceful possession of the plaintiff’s suit properties. This necessitated the filing of the suit. 5. The first defendant filed a written statement, which was adopted by defendants 3, 5 and 6. The written statement was confined to Item 2. Suit item 2 fell to the share of the first defendant and he was in enjoyment of the same. The said item had been leased out to the sixth defendant under an arrangement and he was in possession pursuant to the said arrangement. The second defendant had been given the second item under a settlement deed. The plaintiff had no right whatsoever in the second item. The plaintiff had filed a suit in O.S.No.113 of 1976 claiming rights as a lessee and the same was dismissed. The plaintiff was estopped from contending that suit item 2 belonged to him. 6. The fourth defendant filed a written statement contending inter alia as follows: Suit items 3 to 8 did not belong to the plaintiff’s family. They belonged to one Manjini Pillai, brother of defendants 4 and 5. The said Manjini Pillai had purchased the suit properties from one Kuilammal. Manjini was a leper and unmarried and he was living with defendants 1 and 2 and defendants 1 and 2 were cultivating those items on behalf of Manjini Pillai. As the second defendant was taking care of Manjini Pillai and as defendants 1 and 2 were relations and as he did not have children, the fourth defendant permitted defendants 1 and 2 to enjoy the properties. But, the fourth defendant alone had been paying kist through the first and the second defendants. The fifth defendant had adopted the third defendant and therefore, in collusion with defendants 1 and 2 he had created certain documents including the properties of Manjini Pillai as if they were joint family properties. The partition deed set up was a sham and nominal document. After the death of Manjini Pillai unmarried and issueless, the fourth and the fifth defendants had jointly succeeded to the properties left behind by Manjini Pillai. The partition deed set up was a sham and nominal document. After the death of Manjini Pillai unmarried and issueless, the fourth and the fifth defendants had jointly succeeded to the properties left behind by Manjini Pillai. The plaintiff had no right, title or interest in items 3 to 8. The plaintiff, in collusion with the Village Officer, had managed to get patta in his name. There was no cause of action for filing the suit. 7. On the above pleadings, the learned District Munsif framed the necessary issues and on the oral and documentary evidence, found that the plaintiff had no consistent case, that he put forward one case in the suit notice, another case in the plaint and yet a third case in the oral evidence, that suit items 3 to 8 were the separate properties of Manjini Pillai, that the partition so far as items 3 to 8 were concerned, was not valid, that items 3 to 8 belonged to Manjini Pillai and on his death, defendants 4 and 5 became entitled to them, that the plaintiff was not in possession of those items, that suit item 2 had been mortgaged to the sixth defendant and that except for suit item 1, the plaintiff was not entitled to any relief. The suit was decreed for Item 1 and dismissed with regard to the other items. 8. The plaintiff filed appeal in A.S.No.42 of 1984 before the Sub Court, Tindivanam. The learned Subordinate Judge, by judgment and decree dated 3.12.1987 reversed the decision of the trial Court with regard to items 3 to 8, allowed the appeal and decreed the suit with regard to those items also. Aggrieved, the present second appeal has been filed. 9. At the time of admission the following substantial questions of law were framed for decision in the second appeal: (1) Whether the plaintiff can claim title to the suit properties, items 3 to 8, without any source of title like purchase or exchange? and (2) Whether the acceptance of the claim of the plaintiff to suit properties items 3 to 8, merely because the plaintiff’s name is entered in the chitta which is not a document of title, has resulted in total failure of justice? 10. and (2) Whether the acceptance of the claim of the plaintiff to suit properties items 3 to 8, merely because the plaintiff’s name is entered in the chitta which is not a document of title, has resulted in total failure of justice? 10. Miss Bibi John, learned counsel for the appellants, made the following submissions: The lower appellate Court made a serious mistake in omitting to notice that the plaintiff had not proved his title to suit items 3 to 8 and that the reliance placed by the learned Subordinate Judge on the entry in the chitta, would not prove the title of the plaintiff to those items. The plaintiff had no consistent case. He put forward a case of partition as if those items were the ancestral properties. But, in the course of evidence, he put forth a case of benami purchase in the name of Manjini Pillai from one Kuilammal and yet another case to the effect that there was an exchange from Manjini in respect of those items. The learned Subordinate Judge also grievously erred in relying on the partition deed, Ex.A-1, for holding title in favour of the plaintiff. 11. Mr.Sivakumar, learned counsel for the contesting first respondent, submitted that the fifth defendant had attested Ex.A-1 partition deed and therefore, defendants 4 and 5 were estopped from contending that suit items 3 to 8 did not belong to the plaintiff. The learned counsel further submitted that Manjini Pillai was a leper and his brothers, defendants 4 and 5, did not take care of him and it was only the first defendant, who had supported him and the lower appellate Court had rightly interfered in the decision by the trial Court, that justice had been done in the instant case and therefore, there was no warrant for interference under Sec.100 of the Code of Civil Procedure. The learned counsel also submitted that the fifth defendant had adopted the written statement of the first defendant and therefore, it would amount to admission of title by defendants 4 and 5 in favour of the plaintiff with regard to items 3 to 8. 12. We are not concerned with items 1 and 2. The dispute relates to only items 3 to 8. 12. We are not concerned with items 1 and 2. The dispute relates to only items 3 to 8. A perusal of the plaint clearly discloses that the plaintiff had based his title on the partition alleged to have taken place in the family of the plaintiff, the first defendant and the third defendant and in which suit items 3 to 8 were allotted to him. The plaint had proceeded as if those items were the joint family properties. In the lawyer notice issued on behalf of the plaintiff, Ex.B-7, the case put forward is that the suit items were got by the plaintiff’s family in an exchange. In the course of evidence, the plaintiff put forward a case that the properties were purchased in the name of Manjini Pillai, benami. When the plaintiff had no consistent case with regard to his right in suit items 3 to 8, it is indeed very strange that the lower appellate Court chose to grant him a decree. It is elementary that the plaintiff has to prove his title. Even according to the plaintiff, suit items 3 to 8 stood in the name of Manjini Pillai. Under Ex.B-8 dated 26.2.1951 Kuilammal executed a mortgaged in favour of Manjini. It was followed by a regular sale deed on 31.8.1933 under Ex.B-9 in favour of Manjini. The title of Manjini to the suit properties is beyond dispute. The mere fact that these items were included in the partition deed in the family of the plaintiff, would not clothe the plaintiff with any title to those items. Defendants 4 and 5 are the brothers of Manjini. Manjini died unmarried. That defendants 4 and 5 are his heirs, who are entitled to the properties of Manjini, is not in dispute. Merely because those items were included in the partition in the family of the plaintiff under the original of Ex.A-1, cannot extinguish the title of Manjini to those items. The original of Ex.A-1 partition deed was not produced. Why it has been kept back is not explained. 13. It is alleged that the fifth defendant had attested Ex.A-1. In the absence of the original, it cannot be found out as to whether the fifth defendant had really attested the document. The original of Ex.A-1 partition deed was not produced. Why it has been kept back is not explained. 13. It is alleged that the fifth defendant had attested Ex.A-1. In the absence of the original, it cannot be found out as to whether the fifth defendant had really attested the document. Even accepting that the fifth defendant had attested the document, it would not mean that the title of the fourth and the fifth defendants in items 3 to 8 had been lost. The learned counsel for the contesting first respondent attempted to make a point that the first defendant and his wife, the second defendant, had looked after Manjini Pillai, who was a leper, and therefore, it was equitable that the first defendant and his sons should get the properties of Manjini Pillai. Such a contention is only stated to be rejected. 14. When the plaintiff had come forward with conflicting versions, the lower appellate Court previously erred in granting him relief, merely on the basis of the contents of the partition deed and the chitta extract. The chitta extract is not a document of title. It was incumbent on the plaintiff to prove his title by some means known to law. He miserably failed in his attempt. The trial Court has considered all the aspects very carefully and dismissed the suit, and the Court view, rightly. The plaintiff has not proved any source of title to suit items 3 to 8. The whole approach of the lower appellate Court is erroneous. As the final Court of fact, it had overlooked material evidence in the shape of documents and come to erroneous decision on the basis of irrelevant and inadmissible evidence the decree granted by the lower appellate Court cannot at all be sustained. 15. The substantial questions of law raised are answered in favour of the appellants. The second appeal will stand allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. However, there will be no order as to costs.