JUDGMENT : The plaintiff is the appellant herein. 2. The plaintiff filed O.S.No.9 of 1999 before the District Munsif Court, Pattukottai for the relief of declaration that suit 'A' schedule property belongs to the plaintiff and defendants 3 to 6 and for recovery of possession from the first defendant. The plaintiff also prayed for a declaration that the plaintiff and defendants 3 to 6 are the owners of the 'B' schedule property and sought injunction as against the defendants 1, 2 and 7 from interfering with peaceful possession and enjoyment of the suit 'B' schedule property. 3. The trial court dismissed the suit with regard to 'A' schedule property and granted a decree for 'B' schedule property as prayed for. The plaintiff filed an appeal for the disallowed portion namely the prayer for declaration of title and recovery of possession for 'A' schedule property. No first appeal was filed by the defendants challenging the decree granted in favour of the plaintiff for 'B' schedule property. The First Appellate Court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the trial Court over 'A' schedule property. As against the same, the plaintiff has filed the present second appeal. 4. The plaintiff had contended that the plaintiff and defendants 3 to 6 were allotted 50 cents in Survey No.107/7B in the final decree proceedings in O.S.No.479 of 1978 which is marked as Exhibit A1. According to the plaintiff, defendants 1 and 2 were not allotted any share in the said final decree proceedings. The plaintiff further contended that the first defendant had executed a registered sale deed in favour of the 7th defendant for an extent of 23 1/3 cents under Exhibit A5 on 08.07.1988. The said sale deed is void. The plaintiff further contended that the first defendant had encroached upon a portion of 50 cents that was allotted in favour of the plaintiff and defendants 3 to 6 and hence, sought for recovery of possession. The plaintiff further contended that the portion encroached by the first defendant is for an extent of 840 square links which is shown as 'A' schedule property and the balance of the property allotted in the final decree namely 49 cents 160 square links is shown ad 'B' schedule property. 5. The plaintiff further contended that the portion encroached by the first defendant is for an extent of 840 square links which is shown as 'A' schedule property and the balance of the property allotted in the final decree namely 49 cents 160 square links is shown ad 'B' schedule property. 5. The trial Court after considering the oral and documentary evidence, granted a decree for 'B' schedule property holding that the said property was allotted in favour of the plaintiff and defendants 3 to 6 in the final decree proceedings under Exhibit A1 and decreed the suit as prayed for with regard to 'B' schedule property. However, the trial Court dismissed the suit with regard to 'A' schedule property on the ground that even though defendants 1 and 2 were not allotted any share in the final decree due to non-payment of Court fee, their entitlement to a share in the said property cannot be disputed. On the said ground, the trial Court has dismissed the suit for 'A' schedule property. 6. The First Appellate Court though came to a conclusion that the first defendant is not entitled to execute exhibit A5 sale deed, arrived at a finding that the purchaser under Exhibit A5 has to file an independent suit for partition to establish his rights. However, confirmed the findings of the trial Court with regard to 'A' schedule property on the ground that the plaintiff will not be entitled to seek recovery of possession of a property in which the first defendant is having a share. Challenging the said judgment and decree, the present second appeal has been filed. 7. The second appeal was admitted on the following substantial questions of law: “(a) whether the judgment and decree of the Courts below are sustainable in law, when the suit A schedule property which forms part of the B schedule have been allotted to the appellant in the final decree proceedings made in O.S.No.479 of 1998 marked as Exhibit A2 and when the first respondent has not objected to the allotment and handing over of the possession of the same to the appellant under Exhibit A4? (b) Whether the sale deed Ex.B3 executed by the 1st respondent to the 7th respondent have any legal force, when the suit properties have been allotted exclusively to the appellant and his family under Ex.A3? (b) Whether the sale deed Ex.B3 executed by the 1st respondent to the 7th respondent have any legal force, when the suit properties have been allotted exclusively to the appellant and his family under Ex.A3? (c) Whether the lower Appellate Court has independently considered the matter or whether it has merely revealed the finding of the trial Court?” 8. The learned counsel for the appellant contended that defendants 1 and 2 were not allotted to any share in the final decree proceedings under Exhibit A1 and hence, they have no right to alienate any portion of family property under Exhibit A5 or encroach upon the share allotted to the plaintiff and defendants 3 to 6 under Exhibit A1 final decree proceedings. The learned counsel further contended that the plaintiff and defendants 3 to 6 have filed an execution proceeding pursuant to the final decree under Exhibit A1 and they have taken possession under Exhibit A4 on 26.03.1984. In paragraph No.4 of the plaint, the plaintiff has contended that the first defendant has encroached upon 'A' schedule property in the month of September 1992. 'A' schedule property is part of 'B' schedule property that was allotted to him in the final decree proceedings. Hence, the Courts below ought to have granted a decree for declaration and recovery of possession also for 'A' schedule property. The learned counsel for the appellant further contended that the Courts below have not properly appreciated the allotment in the final decree proceedings as well the report of the Advocate Commissioner filed in the present suit. The Commissioner's report and plan in Exhibits C3 to C5 will clearly indicate that 'A' schedule property has been encroached upon by the first defendant. 9. Per contra, the learned counsel for the respondent contended that the plan annexed to Exhibit A1 final decree will clearly indicate that 50 cents in survey No.107/7B alone was allotted to the share of the plaintiff and defendants 3 to 6. Survey No.107/7A having an extent of 24 cents remained unallotted in view of the fact that the Court fee was not paid by the defendants 1 and 2 in the partition suit. Since the Court fee was not paid by the defendants 1 and 2, there was no preliminary or final decree in favour of the defendants 1 and 2. Survey No.107/7A having an extent of 24 cents remained unallotted in view of the fact that the Court fee was not paid by the defendants 1 and 2 in the partition suit. Since the Court fee was not paid by the defendants 1 and 2, there was no preliminary or final decree in favour of the defendants 1 and 2. According to the learned counsel for the respondent, this will not amount to denying the share of the defendants 1 and 2 in the suit schedule property. He further contended that the plaintiff will be entitled to only 50 cents and he is not legally entitled to question any alienation of Survey No. 107/7A. According to the learned counsel for the respondent, though Survey No.107/7A was not specifically allotted in favour of defendants 1 and 2, they have taken possession of the same, since it was shown as a separate subdivision in the commissioner's report and plan annexed to the final decree proceedings. He further contended that the defendants have not encroached upon any portion of the properties allotted to the plaintiff in the final decree proceedings. 10. I have considered the submissions on either side. 11. It is not in dispute that the plaintiff and defendants 3 to 6 were allotted 50 cents in Survey No. 107/7B in the final decree proceedings in O.S.No.479 of 1978 under Exhibit A1. The commissioner's plan annexed to the final decree will clearly indicate that the plaintiff and defendants 3 to 6 were jointly allotted an extent of 50 cents in Survey No.107/7B and an extent of 24 cents falling under Survey No.107/7A was left unallotted. Hence, it is evident that the plaintiff and defendants 3 to 6 are entitled to claim right, title of possession over an extent of 50 cents falling under Survey No.107/7B. On the other hand, the plaintiff and defendants 3 to 6 will not be entitled to make any claim over an extent of 24 cents falling within Survey No.107/7A. The plaintiff and defendants 3 to 6 have taken possession of the properties allotted to them under Exhibit A1 final decree under Exhibit A4 on 26.03.1984. This is not disputed by the defendants 1 and 2. 12. The plaintiff in the present suit has alleged that the first defendant has encroached upon an extent of 840 square links in Survey No.107/7B in the month of September 1992. This is not disputed by the defendants 1 and 2. 12. The plaintiff in the present suit has alleged that the first defendant has encroached upon an extent of 840 square links in Survey No.107/7B in the month of September 1992. The said encroachment is being disputed by the defendants in the written statement. An Advocate Commissioner was appointed in the present suit and he has filed a report on 22.06.2000 under Exhibit C3. In Paragraph No.4 of the report he has submitted that the occupant of Survey No.107/7A has encroached upon 840 square links in Survey No.107/7B. The plan annexed to the report in Exhibit C4 will also indicate that the occupant of Survey No.107/7A has encroached upon 840 square links in Survey No.107/7B. The encroachment of 840 sq.links in Survey No.107/7B has been shown as red marked portion in the commissioner's plan. That apart, the defendants 1 and 2 in the suit have not been allotted any share in Survey No.107/7B. Hence, it is evident that the occupants of Survey No.107/7A namely defendants 1 and 2 have encroached upon 840 sq.links in Survey No.107/7B which has been allotted to the plaintiff, defendants 3 to 6 jointly under Exhibit A1 final decree proceedings. The Courts below have not properly appreciated the contention of the plaintiff with regard to 'A' schedule property and dismissed the suit on erroneous ground that the sale deed under Exhibit A5 will stand in the way of the plaintiff getting a decree over 'A' schedule property. 13. Exhibit A5 is a sale deed executed by the first defendant in favour of the 7th defendant who is the son of the 2nd defendant. As already held by this Court, the plaintiff and defendants 3 to 6 have no right, title or possession over Survey No.107/7A. The sale deed under Exhibit A5 has been executed for an extent of 23 1/3 cents in Survey No.107/7A. The plaintiff and defendants 3 to 6 cannot have any objection to the said sale deed because it relates to Survey No.107/7A.That apart, as per Commissioner's report and plan in Exhibit A1, Survey No.107/7A is having an extent of 24 cents. So, viewed from any angle, Exhibit A5 sale deed has been executed by the first defendant for which he is legally entitled to do so. So, viewed from any angle, Exhibit A5 sale deed has been executed by the first defendant for which he is legally entitled to do so. The plaintiff and defendants 3 to 6 cannot question the said sale deed which relates to Survey No.107/7A and it is well within 24 cents. Hence, the findings of the Courts below with regard to validity of Exhibit A5 sale deed are not correct. 14. Though the first defendant is entitled to execute Exhibit A5 sale deed, the defendants 1, 2 and 7 have no right to encroach upon Survey No.107/7B which has been allotted to the share of plaintiff and defendants 3 to 6 under Exhibit A1 final decree proceedings. The commissioner's report and plan in the present suit categorically points out that the occupant of Survey No.107/7A has encroached upon 840 Sq.links in Survey No.107/7B. While upholding Exhibit A5 sale deed, this Court comes to the conclusion that the encroachment made by the first defendant for an extent of 840 sq.links in Survey No.107/7B is liable to be removed. 15. In view of the above said discussions, this Court comes to a conclusion that the Courts below have not properly considered Exhibit A1 final decree, Exhibit A4 delivery receipt, Exhibit A5 sale deed and commissioner's report in Exhibits C3 to C5. Hence, the second appeal is allowed granting a decree in favour of the plaintiff for 'A' schedule property. However, at the time of execution, no portion of Survey No.107/7A which is in occupation of the 7th defendant shall be disturbed. 16. In the view of the above discussions, this Court grants the following decree: (i) The plaintiff shall be entitled to a decree as prayed for over 'A' schedule property. However, the decree for 'A' schedule property will be restricted to Survey No.107/7B and this decree will not confer any right upon the plaintiff over Survey No.107/7A. 17. With the above observation, this second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.