JUDGMENT 1. The appellants, who are defendants 1 and 2 in the Suit, filed this Second Appeal, as against the judgment and decree, dated 4.1.2011 in A.S. No. 47 of 2010, on the file of the Subordinate Court, Devakkottai, confirming the judgment and decree in O.S. No. 16 of 2004, dated 29.3.2010, on the file of the Additional District Munsif, Karaikudi. 2. Before the trial Court, first respondent herein is plaintiff, the appellants are defendants 1 and 2 and the 2nd respondent is the 3rd defendant. For the sake of convenience, the parties referred as in the suit is referred in this Second Appeal. 3. The first respondent/plaintiff has filed a suit for declaration and consequential relief of delivery of possession and mandatory injunction. Briefly, the case of the plaintiff is that the suit property viz., Plot No. 14 is a portion in T.S. No. 429/12 measuring 3 acres 32381 Sq.ft, which has been sub-divided from T.S. No. 429/1B1A, measuring 129 Acres and 11247 Sq.ft. According to the plaintiff, one Perianan Ambalam and VR.Alagappan Ambalam were the members of Karaikudi Vallamba Nattars and the above said Perianan Ambalam sold northern portion in T.S. No. 429/12 through a registered sale deed, dated 27.10.1958 and VR. Alagappa Ambalem sold southern portion through sale deed dated 20.10.1958 to one Shanmugam Pillai and after purchase, the above said Shanmugam Pillai has been in possession and enjoyment of the above said property and he has been included as a joint pattadar in patta S. No. 586, which is for S. No. 429/1B1A. The 3rd defendant viz., “Arul Migu Suyam Prakasa Easwarar @ Than Thondreeswarar Thirukoil”, Eluppakkudi through its hereditary trustee filed an application in E.A. No. 407 of 1970 in E.P. No. 22 of 1970 in O.S. No. 91 of 1927 for removing the alleged resistance by the respondents in the above said portion in which the above said Shanmugam Pillai was the 51th respondent in respect of S. No. 429/17 and other properties. The above said application and also Civil Miscellaneous Appeal in C.M.A. No. 59 of 1973 were dismissed and as against the above said order, the appellant, including Shanmugam Pillai, prepared an appeal before this Court in A.A.O. No. 14 of 1977 and this Court had allowed the appeal, accepting the claim of appellant Nos. The above said application and also Civil Miscellaneous Appeal in C.M.A. No. 59 of 1973 were dismissed and as against the above said order, the appellant, including Shanmugam Pillai, prepared an appeal before this Court in A.A.O. No. 14 of 1977 and this Court had allowed the appeal, accepting the claim of appellant Nos. 12 and 15 and set aside the orders passed in C.M.A. No. 59 of 1973 and in E.A. No. 407 of 1970 finding that the above said Eluppakkudi Devastanam cannot question the alienation made by the Karaikudi Nattars to the appellants in the above said A.A.O. No. 14 of 1977. In the above said appeal,, Shanmugam Pillai was the 8th appellant and thus, the title of the above said Shanmugam Pillai has been recognized by this Court. 4. It is also averred in the plaint that the above said Shanmugam Pillai died intestate leaving behind his wife Gandhimathi, his son Natarajan, his daughters Annapoorani, Alamelumangai and Dhanalakshmi as his legal heirs and the above said son Natarajan applied for sub-division and transferred the patta for T.S. No. 429/12. The above said Natarajan sub-divided T.S. No. 429/12 as house-site plots and made a lay out and it is approved by the Director of Town Planning, Madras. 5. It is further stated in the plaint that legal heirs of Shanmugam Pillai appointed one Ganesan as their power agent through a registered deed of power of attorney dated 24.7.1995 for selling the plots and the above said power agent sold 15 plots including the suit property viz., Plot No. 14, to the plaintiff for Rs. 1,68,600/- through a registered sale deed, dated 19.10.1995 and from the date of purchase, the plaintiff is in possession and enjoyment of the property and patta also transferred in his name and constructed a small house in the suit property and house tax also paid and further the plaintiff has also prescribed title to the suit property by adverse possession. It is also averred in the plaint that the defendants have no right or title over the suit property but from 2.11.1997 onwards they are denying the plaintiff’s title and tried to tress-pass into the suit property and therefore, originally he filed the suit for the reliefs of declaration and permanent injunction. It is also averred in the plaint that the defendants have no right or title over the suit property but from 2.11.1997 onwards they are denying the plaintiff’s title and tried to tress-pass into the suit property and therefore, originally he filed the suit for the reliefs of declaration and permanent injunction. Latter, the plaintiff has filed a petition and amended the plaint by stating that after suit, in the first week of May 1998, the defendants tress-passed into the suit property and removed the shed belonging to the plaintiff and constructed two thatched sheds, bath rooms in the suit property and compound wall, dug a well and put up fence on the east and western sides and therefore, the suit is amended for the reliefs of declaration and recovery of possession and mandatory injunction. The 3rd defendant also impleaded in the suit. 6. Defendants 1 and 2 have filed the written statement denying the allegations in the plaint and contended that the plaintiff filed a suit for T.S. No. 429/12 but the suit property viz., Plot No. 14 is in T.S. No. 1339/Part and it is belonged to the 3rd defendant viz., Suyam Pirakeshwar Swamy Devasthanam and one Arumugam was a tenant in respect of the site from the Devasthanam and the above said tenancy was transferred to defendants 1 and 2 and they constructed two thatched sheds and enjoyed the suit property by paying kist and electricity bills and also denied the allegations that the suit property was belonged to Shanmugam Pillai and patta was granted to him and also denied that after the suit, in the first week of May 1996, these defendants have encroached the suit property. 7. The 3rd defendant Devastanam has filed separate written statement and contended that the land belonged to the 3rd defendant, while the super structure belonged to defendants 1 and 2 and therefore, the 3rd defendant is the owner of the land and defendants 1 and 2 are the owner of super structure and the defendants 1 and 2 are in possession as tenant under 3rd defendant and therefore, the plaintiff cannot seek any reliefs, since he has no right in the suit property. 8. 8. From the above said pleadings on either side, the trial Court Judge has framed four issues and on the side of the plaintiff has examined five witnesses as P.Ws.1 to 5 and marked 21 documents as Exhibits A-1 to A-21 and on the side of the defendants examined five witnesses as D.Ws.1 to 5 and marked 13 documents as Exhibits B-1 to B-13 and five documents were marked as Exhibits C-1 to C-5, as Court documents and also two documents were marked as X1 and X2 and considering the above said oral and documentary evidence, finally decreed the suit as prayed for by the plaintiff. Aggrieved over the above said decree and judgment passed by the trial Court, only defendants 1 and 2 have preferred the first appeal impleading the plaintiff and the 3rd defendant as respondents. The first appellate Court has also dismissed the above said appeal filed by the first and second defendant, confirming the decree and judgment passed by the trial Court. Aggrieved over the above said concurrent finding of both the Courts below, the defendants 1 and 2 alone have filed this Second Appeal. 9. This Court, admitted the Second Appeal on the following Substantial Questions of Law: “1. Whether the Courts below are correct in decreeing the suit, when the plaintiff himself is not proved his case by producing survey settlement register, as per Sections 101 and 102 of Indian Evidence Act? 2. Whether Exhibit A-15 is not valid under the eye of Law? 3. Whether the Courts below are correct in decreeing the suit especially when the suit property itself already given to 2nd respondent in the compromise decree and possession are taken by the 2nd respondent without set aside by the above said compromise decree the present decree is maintainable as per Section 115 of Indian Evidence Act? 4. Whether the Courts below are correct in decreeing the suit when the plaintiff has claim over the suit property which is not correlating with the revenue records and compromise decree and the Appeal against appealable order and also which is not properly divided suit property?” 10. Admittedly, the first respondent/plaintiff has filed the suit in respect of the property in T.S. No. 429/12, Plot No. 14 and prayed for declaration and other reliefs. Admittedly, the first respondent/plaintiff has filed the suit in respect of the property in T.S. No. 429/12, Plot No. 14 and prayed for declaration and other reliefs. The appellant viz., defendants 1 and 2 have filed written statement by stating that the suit property is not S. No. 429/12 and it is only T.S. No. 1339/Part and the above said property is belonged to 3rd defendant and originally one Arumugam was a tenant in the land and he transferred the tenancy rights in the land to the defendants 1 and 2 and they constructed two thatched sheds in the suit property and therefore, the plaintiff is not entitled to the reliefs as sought for. 11. The case of the 3rd defendant is that the suit property is belonged to 3rd defendant and defendants 1 and 2 are tenants in the land belonged to the 3rd defendant and they constructed a super structure in the suit property and therefore, the plaintiff is not entitled to any relief. 12. In the instant case, the plaintiff has claimed title over the suit property in S. No. 429/12 but the contesting defendants have stated that it is in S. No. 1339/Part and therefore, Advocate Commissioner was appointed twice and filed reports and plan as Exhibits C-1 to C-5 and Town Surveyor also filed documents as X1 and X2 and also the surveyor, who measured the suit property and other properties also examined as Court witnesses i.e., C.W.1. A perusal of the above said evidence of surveyer viz., C.W.1, reveals that he clearly deposed that he measured the property as per Exhibit A-12 and corralated the boundaries with survey numbers and it is found that the suit property is in T.S. No. 429/12 and the above said suit property shown in plan Exhibit C-5 in green colour but S. No. 1339/Part was separate property lies 172 feet east of the suit property and also admitted that the above said T.S. No. 429/12 was sub-divided as per layout and finally concluded that the suit property is not in T.S. No. 1339/Part. 13. Both the Courts below have discussed in detail and held that the suit property is a separate property lies in S. No. 423/12 but the defendants claimed separate property viz., T.S. No. 1339/Part which lies east of the suit property. 13. Both the Courts below have discussed in detail and held that the suit property is a separate property lies in S. No. 423/12 but the defendants claimed separate property viz., T.S. No. 1339/Part which lies east of the suit property. The learned counsel for the appellants has argued in length about the prior proceedings between the 3rd defendant and the predecessor of the plaintiff i.e., proceedings in E.A. No. 407 of 70 in E.P. No. 22 of 1970 in O.S. No. 91 of 1977 and C.M.A. No. 51 of 1972 and A.A.O. No. 14 of 1977. A perusal of the above said oral and documentary evidence adduced on the side of the plaintiff reveal that the suit property belonged to the predecessor of the plaintiff as stated in the plaint, the 3rd defendant is not owner of the above said suit property. 14. Further, in the instant case, the trial Court has decreed the suit as against the alleged tenants viz., defendants 1 and 2 and also alleged owner of the land viz. 3rd defendant but admittedly, the alleged owner of the land viz., the 3rd defendant has not filed any first appeal challenging the decree and judgment passed by the trial Court. The first appellate Court also confirmed the decree and judgment passed by the trial Court and as against the decree and judgment passed by the first appellate Court, defendants 1 and 2, who are the alleged tenants under 3rd defendant alone, have filed this Second Appeal. The alleged owner of the land viz., 3rd defendant has not filed any first appeal or Second Appeal. 15. In the above circumstances, the learned counsel appearing for the 2nd respondent has relied two decisions viz., (1) Koksingh v. Smt. Deokabai AIR 1976 SC 634 and (2) N. Bhoopathy and 4 Others v. Srinivasa Naicker (died) and 9 Others 2008 (5) CTC 673 and contended that even though the 3rd respondent has not preferred first appeal or Second Appeal, there is no bar to this Court to pass a decree in favour of 3rd defendant. In Koksingh v. Smt. Deokabai (supra), para 7 reads as under: “7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.” 16. In Koksingh v. Smt. Deokabai (supra), para 7 reads as under: “7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.” 16. In N. Bhoopathy and 4 Others v. Srinivasa Naicker (died) and 9 Others (supra), wherein in paragraph 5 reads as under: “5. The learned counsel for the review petitioner referred to Chandramohan Ramachandra Patil v. Bapu Koyappa Patil (dead) through Lrs & Others, AIR 2003 SC 1754 : 2003 (1) CTC 621 , which also was a case of partition. The Supreme Court held in the above case that, in a Suit for partition, plaintiff and defendants are parties of equal status and if the right of partition is recognized and upheld by the Court, merely because only some of the plaintiffs had appealed and not all, the Court was not powerless. The defence that the Suit was barred by limitation was not accepted and the suit was decreed in its entirety on the Appeal filed by some of the plaintiffs. Therefore, the defendants contended before the Supreme Court, that the Appellate Court cannot grant relief to all the plaintiffs at the instance of only some of the plaintiffs. The Supreme Court held thus: 15. In our opinion, therefore, the Appellate Court by invoking Order 41, Rule 4 read with Order 41, Rule 33 of the Code could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of Suit passed by the Trial Court had become final inter se between the non-appealing plaintiffs and defendants.” 17. The above said decisions relied on by the second defendant are not applicable to the facts of the present case, since the first decision relating to enforcement of charges and second decision relating to a suit for partition in which it is clearly held that the plaintiffs and defendants are parties of equal status and therefore, the above said facts of the case are not applicable to the facts of the present case. In the instant case, as already stated, the 1st respondent/plaintiff filed the suit in respect of T.S. No. 429/12 and the appellants/defendants claimed separate T.S. No. 1339/Part and therefore, both the Courts below have correctly concluded that the first respondent/plaintiff is entitled to the relief sought for in the plaint. In the above circumstances, all the contentions raised by the appellants/defendants 1 and 2 that is the 1st respondent/plaintiff has not proved his case by producing survey settlement register and Exhibit A-15 is not valid document and as per the compromise decree, the plaintiff is not entitled to the suit property and the plaintiff is not correlating the documents with revenue records and compromise decree are all not correct, since both the parties are claiming right in different survey numbers. 18. From the above said discussion, appellants/defendants 1 and 2 have not proved that the concurrent findings of both Courts below are perverse or illegal and also no substantial questions of law arises in this case and hence, no question of law, particularly, substantial question of law as framed by this Court, does not arise from the facts of the present case and therefore, this second appeal is to be dismissed. 19. In the result, the second appeal is dismissed and the judgments and decrees passed by both Courts below are confirmed. No costs. Consequently, connected miscellaneous petitions are also dismissed. Appeal dismissed.