(Prayer: This Second Appeal is filed under Section 100 of C.P.C., to set aside the judgment and decree passed in A.S.No.4 of 2013 dated 26.11.2013 on the file of the Principal Subordinate Court, Mayiladuthurai and restore the judgment and decree passed in O.S.No.147 of 2008 dated 13.12.2012 on the file of the Principal District Munsif Court, Mayiladuthurai by allowing this Second Appeal.)
1. This Second Appeal has been filed by the second defendant challenging the judgment and decree dated 26.11.2013 passed in A.S. No. 4 of 2013. By the impugned judgment, the first appellate Court partly reversed the judgment and decree dated 13.12.2012 passed in O.S. No. 147 of 2008 on the file of the Principal District Munsif Court, Mayiladuthurai, while confirming the trial Court's dismissal of the suit in respect of the southern 4½ cents in Survey No. 253/15B and decreeing the suit in favour of the plaintiff in respect of the northern 4½ cents in Survey No. 253/15B, by granting the reliefs of declaration of title and recovery of possession.
2. The appellant was the second defendant. The first respondent was the plaintiff, and the second respondent was the first defendant before the trial court. For convenience, the parties are referred to by their rank in the suit.
3. The old Survey No.253/15 measured 30 cents. It was later subdivided into Survey No.253/15A, measuring 21 cents, and Survey No.253/15B, measuring 9 cents. There is no surviving dispute in this Second Appeal regarding Survey No.253/15A. The controversy is confined to the northern 4½ cents of the 9 cents in Survey No. 253/15B. The first appellate Court’s decision in favour of the first defendant regarding the southern 4½ cents has not been challenged by the plaintiff and has attained finality.
4. Plaintiff’s case: The plaintiff submits that the suit property and other properties originally belonged to the plaintiff’s mother, Hajia Ruhaiya Beevi. She executed a settlement deed in favour of the plaintiff herein on 20.03.1971. Under the settlement deed, the plaintiff is in possession of the property, and the patta also stands in his name. The old Survey Number of the suit property is 253/15, measuring 30 cents. The said Survey Number was subsequently assigned new Survey Nos. 253/15A, comprising 21 cents, and 253/15B, comprising 9 cents.
5. The suit property was allotted to the plaintiff’s mother by way of a partition dated 12.10.1963 between Sultan Beevi, Hajia Ruhaiya Beevi, Neidun Beevi and Mohamed Malik. In the said partition, the ‘B’ Schedule property was allotted to the plaintiff’s mother, Hajia Ruhaiya Beevi, and the property situated in Survey No. 253/15, measuring 30 cents, was allotted to the mother of the plaintiff herein. Further, a patta was also issued in favour of the plaintiff herein.
6. It was contended that, however, the first defendant filed a caveat before this Court, contending that, in respect of the suit ‘A’ Schedule property situated in Survey No. 253/15B, measuring 4½ cents, the first defendant has a right over the suit property and that they purchased the said property in the year 1998 further that the first defendant has no right to the said property but has encroached upon it.
7. Further, after the suit was filed, when the Advocate Commissioner inspected the suit property, the Advocate Commissioner stated that a portion of the suit property was in the possession of one Manibalan. Accordingly, the said person was impleaded as the second defendant in the suit. The plaintiff contends that the second defendant, without any right, is in possession of the suit property.
8. Hence, to recover possession of the suit property, the plaintiff filed the suit seeking a declaration of title in respect of the 2nd item of the Schedule property S.No.253/15B, recovery of possession of 9 cents in S.No.253/15B, and mesne profits.
9. Defendants’ case: The first defendant resisted the suit, contending that it is not maintainable either in law or on facts, and that the plaintiff has no right, title or interest in the suit property. According to him, the plaintiff is not the owner of R.S. No. 235/15, measuring 30 cents, and the plaintiff’s mother, Hajia Ruhaiya Beevi, had no right to execute the alleged settlement deed in favour of the plaintiff. He further contended that the suit property is in his exclusive possession and enjoyment. According to the first defendant, Abdul Majeed Rowther conveyed the property to Krishnamoorthy under a sale deed dated 25.04.1959, and Krishnamoorthy thereafter conveyed the same to Mohamed Tajudeen, Ahamed Basheer and Sathakathullah under a registered sale deed dated 25.06.1969. The first defendant claims to have purchased the property from them in 1988 and to have been in continuous, exclusive and uninterrupted possession and enjoyment thereof from that year onwards. He further contended that, even if the plaintiff had any right over the suit property, such right stood lost by virtue of his long and uninterrupted possession. He also disputed the description and extent of the suit property, the valuation of the suit and the cause of action and therefore prayed for dismissal of the suit with costs.
10. The second defendant contended that the plaintiff has no right or title to the suit property. According to him, the property originally belonged to Mohamed Sherif, from whom Krishnamoorthy Padayachi, his tenant, purchased it and subsequently conveyed it to the second defendant’s father. After his father, the second defendant claims to be in continuous possession and enjoyment of a portion of the suit property as absolute owner. He further disputed the cause of action, valuation, court fee and description of the property, and contended that he was an unnecessary party, seeking dismissal of the suit.
11. On the basis of the pleadings, the trial court recast the following issues:
1. Whether the plaintiff is having title over the second item of the suit property?
2. Whether the plaintiff is entitled to the relief of declaration as prayed for?
3. Whether the plaintiff is entitled to the recovery of possession as prayed for?
4. Whether the plaintiff is entitled to the relief of mesne profits as prayed for?
5. To what reliefs are the parties entitled?
12. On the side of the plaintiff, Nagarajan, the plaintiff’s Power of Attorney agent, was examined as P.W.1, and Ravichandran, a third party, was examined as P.W.2. On the side of the plaintiff, Exs. A.1 to A.9 were marked. Ex. A.1, dated 20.03.1971, is the settlement deed executed by the plaintiff’s mother in favour of the plaintiff; Ex. A.2 is a copy of the caveat petition filed by the first defendant; Ex. A.3, dated 26.03.2008, is the legal notice issued by the plaintiff’s Power of Attorney agent to the first defendant; Ex. A.4, dated 02.04.2008, is the reply notice issued on behalf of the first defendant; Ex. A.5, dated 04.03.2008, is the encumbrance certificate for the period from 01.01.1968 to 31.12.1988; Ex. A.6, dated 12.10.1963, is a copy of the family partition deed; Ex. A.7, dated 20.03.2008, is the patta transfer order issued by the Tahsildar, Mayiladuthurai; Ex. A.8, dated 07.10.2008, is the patta standing in the name of the plaintiff; and Ex. A.9, dated 07.07.1993, is the release deed executed by Kasinathan and three others in favour of the plaintiff.
13. On the defendants' side, the first defendant was examined as D.W.1; the second defendant was examined as D.W.2; and Kasinathan, a third party, was examined as D.W.3. Exs.B.1 to B.5 were marked. Ex.B.1, dated 25.04.1959, is a copy of the sale deed executed by Abdul Majeed Rawthar in favour of Krishnamurthy Nainar; Ex.B.2, dated 25.06.1968, is a copy of the sale deed executed by Krishnamurthy in favour of Mohamed Tajudeen and others; Ex.B.3, dated 10.04.2008, is the registered sale deed executed by Ahmed Basheer and Mohamed Sathakathullah in favour of the first defendant; Ex.B.4, dated 30.10.1937, is a copy of the registered partition deed between Pichaigani Rawthar and two others; and Ex.B.5 is the RTR/Cultivating Tenancy Register extract relating to Arumbur Village.
14. The Court documents were Ex.C.1, the Advocate Commissioner’s report dated 10.01.2011; Ex.C.2, the Commissioner’s sketch dated 10.01.2011; Ex.C.3, the Surveyor’s report dated 20.04.2010; and Ex.C.4, the Surveyor’s sketch dated 20.04.2010.
15. On appreciation of the pleadings and evidence, the trial Court first held that, in a suit for declaration, the burden rested on the plaintiff to establish his title. It examined Exs. A.6 and A.1 and found that, although Ex. A.6 recorded a partition within the plaintiff’s maternal family, no earlier document was produced to show how the executants of Ex. A.6 acquired title to the disputed second item—the settlement under Ex. A.1 was therefore held insufficient, by itself, to establish title.
16. The trial Court further found that P.W.1 obtained the power of attorney only on 07.03.2006 and had no personal knowledge of earlier family transactions. It held that a Power-of-Attorney holder may testify regarding acts done by him under the authority granted to him. Still, it cannot substitute himself for the principal in respect of matters exclusively within the principal’s personal knowledge. The evidence of P.W.1 regarding the plaintiff’s family title was therefore not accepted.
17. The trial Court did not treat Ex.A.9, a release said to have been executed by cultivating tenants, as proof of the plaintiff’s title. It held that an acknowledgement or release by persons claiming cultivation could not substitute for proof of the plaintiff’s root of title.
18. On the defendants’ side, the trial Court considered Ex.B.4, the registered partition deed dated 30.10.1937, to be the earliest document. It noted that the document concerned property in Survey No. 253/15 and showed allotments to the Pichaigani Rowther and Udumansa Rowther branches, with Sultan Beevi's property shown as an adjoining boundary. It also considered Ex.B.1 dated 25.04.1959, Ex.B.2 dated 25.06.1968 and Ex.B.3 dated 10.04.2008 as forming the chain relied upon by the first defendant, and held that the first defendant is in possession of 4 ½ cents of the second item of the suit property.
19. As regards the remaining portion, the trial Court referred to Ex.B.5 and accepted the second defendant’s case that his father, Krishnamurthy Padaiyachi, had been recorded as a cultivating tenant and that the second defendant had continued in possession after him.
20. The trial Court accordingly answered the issue of title against the plaintiff. Consequently, it rejected the claims for a declaration, recovery of possession, and mesne profits, and dismissed the suit with costs.
21. Aggrieved by the dismissal, the plaintiff preferred A.S.No.4 of 2013 before the Principal Subordinate Judge at Mayiladuthurai. The first appellate court framed the single point: “Whether the appeal is liable to be allowed?”
22. The first appellate Court found that there was no dispute regarding the first item of the suit property, Survey No. 253/15A, extent 21 cents. Regarding Survey No. 253/15B, the defendants' sale-deed chain was examined. It found that the southern 4½ cents had passed through Krishnamurthy to Mohamed Tajudeen, Ahmed Basheer and Sathakathullah under Ex.B.2, and thereafter to the first defendant under Ex.B.3. It therefore confirmed the dismissal of the suit in respect of the southern 4½ cents.
23. The first appellate Court, however, took a different view of the northern 4½ cents. It held that the second defendant had not produced satisfactory documents showing from whom he obtained the cultivating right, to whom the northern portion belonged, or how his possession originated. It also held that adverse possession had not been established. The Court considered the evidence of D.W.3 and the plaintiff’s documents, including Exs. A.1, A.6 and A.9. It concluded that the trial Court’s dismissal of the northern portion could not be sustained.
24. The first appellate Court thus partly allowed the appeal by a judgment and decree dated 26.11.2013. It declared the plaintiff’s title to the northern 4½ cents in Survey No.253/15B and directed the second defendant to deliver possession. In all other respects, including the southern 4½ cents claimed by the first defendant, the trial Court’s decree was confirmed.
25. Aggrieved by the judgment and decree of the first appellate court, the 2nd defendant filed this Second Appeal, which was admitted on the following substantial questions of law:
1) When the plaintiff failed to prove that the executants to Ex.A.6 had valid title to the suit properties by producing its parent title deeds and when the defendants produced Ex.B.4 registered Partition Deed anterior to Ex.A.6, whether the Lower Appellate Court erred in law in holding that the plaintiff has got title to 4 ½ cents of suit properties?
(2) Whether the lower appellate Court erred in law in ignoring Ex.B.4, the earliest registered document pertains to the suit properties when the plaintiff failed to adduce any evidence with regard to his predecessors in interest title?
26. The learned counsel appearing for the appellant/second defendant submitted that the plaintiff’s family could claim title only to the extent of property shown to have belonged to them. He contended that, Ex.B.4, an earlier registered partition deed relating to Survey No.253/15, shows that specific portions therein were allotted to Pichaigani Rowther and Udumansa Rowther. According to him, the subsequent partition deed relied upon by the plaintiff under Ex.A.6 does not disclose or establish how its executants derived title to those portions. It was therefore contended that the first appellate Court failed to consider Ex.B.4 properly and that, being an earlier document in the chain of title, Ex.B.4 ought to have been given due weight when considering the claim based on Ex.A.6.
27. The learned counsel further submitted that Exs.B.1, B.2 and B.3 had been accepted by the Courts below in relation to the southern portion of the property, and that Ex.B.5 supported the father of the second defendant’s possession as a cultivating tenant in respect of the remaining portion. He contended that the first appellate Court decreed the suit against the second defendant solely on the ground that the second defendant had failed to establish the precise source of his right over the property. According to the learned counsel, such an approach is contrary to the settled principle that the plaintiff must succeed on the strength of his own title and not on the weakness of the defendant’s case. He further submitted that Ex.A.9, relied upon by the plaintiff as an unregistered surrender deed executed by the tenants, was not executed by or binding upon the second defendant, who was not a party thereto. Referring to the evidence of D.W.3, the learned counsel pointed out that D.W.3 had stated that, as per Ex.A.9, he was cultivating land in Survey No.253/15 to an extent of 63 kuzhis, equivalent to about 21 cents. On this basis, it was contended that the plaintiff had failed to establish title to the disputed 4½ cents claimed in the suit. The learned counsel therefore prayed that the Second Appeal be allowed, the judgment and decree of the first appellate Court be set aside, and the judgment and decree of the trial Court dismissing the suit be restored.
28. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that the entire extent of 30 cents in Survey No.253/15 was allotted to the plaintiff’s mother, Hajia Ruhaiya Beevi, under Ex.A.6, the partition deed, and that she, in turn, settled the said property in favour of the plaintiff under Ex.A.1 dated 20.03.1971. In support of the plaintiff’s title and possession, the learned counsel relied upon Exs.A.7 and A.8, the revenue records standing in the plaintiff’s favour, as well as Ex.A.9, the deed executed by the cultivating tenants acknowledging the plaintiff’s right over the property.
29. The learned counsel further relied on the evidence of D.W.3 and contended that his testimony supported the plaintiff’s case. According to the learned counsel, D.W.3 admitted that the entire property belonged to the plaintiff and that the land he cultivated had been handed over to the plaintiff under Ex.A.9. It was therefore submitted that Ex.A.9 supports the plaintiff’s claim to title over the entire 30 cents in Survey No.253/15. On the other hand, Ex.B.5, relied upon by the second defendant, would not establish any title in his favour and, by itself, could not defeat the plaintiff’s documentary title.
30. It was also contended that the properties covered by the defendants’ title documents do not correspond to the northern 4½ cents, which forms the subject matter of the present dispute, and that the second defendant has produced no document of title specifically relating to the said northern 4½ cents. The learned counsel further pointed out that the finding of the first appellate Court concerning the southern 4½ cents had not been challenged and had attained finality. Therefore, according to him, the controversy in the present Second Appeal is confined to the northern 4½ cents.
31. The learned counsel submitted that the plaintiff had established his title through Exs. A.1, A.6, A.7, A.8 and A.9. In contrast, the second defendant had failed to establish any independent title over the disputed northern 4½ cents. According to him, the first appellate court had correctly appreciated both the oral and documentary evidence in decreeing the suit in respect of the said portion, and no ground was made out for interference with its judgment and decree in the second appeal. He therefore prayed for the dismissal of the second appeal.
Substantial Question of Law No.1:
32. The suit was instituted for a declaration of title and recovery of possession in respect of the second item of the suit property, measuring 9 cents, against the first defendant. The plaint schedule contains two items, namely 21 cents in S.No.253/15A and 9 cents in S.No.253/15B. There is no dispute regarding the first item. After the suit was instituted, an Advocate Commissioner inspected the properties and submitted a report and plan. The Commissioner/surveyor reported that the first item was in the plaintiff's possession and that the second item comprised two portions: the northern portion, marked A-B-C-D in the plan, was in the occupation of the second defendant, while the southern portion was in the possession of the first defendant, who had fenced it.
33. The suit properties comprise agricultural land and vacant sites without any permanent structures. An Advocate Commissioner cannot be appointed to determine possession of immovable property, as the Court must decide that issue based on evidence. The warrant in this case merely directed the Commissioner to measure the properties, note their physical features, and submit a report with a plan. Nevertheless, in Ex.C1, the Commissioner stated that the southern portion of the second item was in the occupation of the first defendant and was being maintained by him after the erection of a fence. In Ex.C3, the Surveyor stated that the northern portion was in the occupation of the second defendant. These observations may reflect the physical state observed during inspection, but they cannot, by themselves, establish either title or lawful possession.
34. The Commissioner's and Surveyor's reports led to the impleadment of the second defendant. The trial Court dismissed the suit in its entirety. On appeal, the first appellate Court confirmed the dismissal as against the first defendant but decreed the suit in favour of the second defendant. The second defendant has therefore preferred this second appeal. The plaintiff has neither appealed nor filed a cross-objection against the dismissal of the suit as against the first defendant.
35. The first appellate Court held that the northern portion of the second item, in the second defendant's occupation, belonged to the plaintiff, whereas the southern portion, in the first defendant's occupation, belonged to the first defendant. Accordingly, a decree was granted only against the second defendant. This conclusion is inconsistent with the documentary chain of title. The material documents, arranged chronologically, are set out below:
| S. No. | Date | Exhibit | Description |
| 1 | 30.10.1937 | Ex.B4 | Certified copy of the partition deed among Pichaigani Rowther and two others. |
| 2 | 25.04.1959 | Ex.B1 | Certified copy of the sale deed executed by Abdul Majeed Rowther in favour of Krishnamoorthy Nainar. |
| 3 | 12.10.1963 | Ex.A6 | Certified copy of the partition deed among members of the plaintiff's family. |
| 4 | 25.06.1968 | Ex.B2 | Certified copy of the sale deed executed by Krishnamoorthy in favour of Mohamed Tajudeen and others. |
| 5 | 20.03.1971 | Ex.A1 | Certified copy of the settlement deed executed by the plaintiff's mother in favour of the plaintiff. |
| 6 | 07.07.1993 | Ex.A9 | Release deed executed by Kasinathan and three others in favour of the plaintiff. |
| 7 | 10.04.2008 | Ex.B3 | Registered sale deed executed by Ahamed Basheer and Mohamed Sathakkathullah in favour of the first defendant. |
37. The recitals in Ex.B4 establish that the family of Moideen Rowther owned 10 cents in S.No.253/15, lying to the east of Sultan Beevi's land and between her land to the west and Bakkiri Padayachi's land to the east. They also establish the internal division of those 10 cents into a northern 5 cents allotted to Pichaigani Rowther and a southern 5 cents allotted to Udumansha Rowther. At the time of Ex.B4, S.No.253/15 had not been subdivided; hence, the respective portions were identified by their location and boundaries.
38. The next document relating to S.No.253/15 is Ex.B1, dated 25.04.1959, executed by Abdul Majeed, son of Pichaigani Rowther, in favour of Krishnamoorthy Nainar. Under Ex.B1, Abdul Majeed conveyed the northern 5 cents, which his father had obtained under Ex.B4. Thus, Ex. B1 traces its title directly to the northern portion allotted under the earlier partition.
39. The plaintiff relies on Ex.A6, dated 12.10.1963, a partition deed between Sultan Beevi and her daughters. Under that deed, the property described in Schedule B was allotted to Hajia Ruhaiya Beevi. Ex.A6 describes the entire 30 cents in S.No.253/15 as allotted to her, without excluding the 10 cents already shown under Ex.B4 as belonging to the family of Moideen Rowther. This overinclusive description is the source of the present dispute.
40. Ex.B4 precedes Ex.A6 by nearly twenty-six years. Its boundary recitals clearly show that the 10 cents belonging to the family of Moideen Rowther lay to the east of Sultan Beevi's property. Therefore, out of the total extent in S.No.253/15, Sultan Beevi's family could claim only the remaining portion and not the 10 cents covered by Ex.B4. When the property conveyed under Ex.B1 was subsequently measured, the precise extent available in the northern portion was found to be 4½ cents, and that extent was accordingly stated in Ex.B2. By then, S.No.253/15 had been subdivided as S.Nos.253/15A and 253/15B.
41. Under Ex.B2, dated 25.06.1968, Krishnamoorthy sold to the minors Ahamed Basheer and Mohamed Sathakkathullah the property he had purchased from Abdul Majeed under Ex.B1. Ex.B2 refers to the subdivided S.No.253/15B and expressly recites the earlier purchase under Ex.B1. Since Ex.B1 related to the northern portion allotted to Pichaigani Rowther under Ex.B4, the conveyance under Ex.B2 necessarily concerned the same northern portion. The western boundary in Ex.B2 is described as the property of Sultan Beevi, evidently referring to the adjoining property claimed by the plaintiff's family.
42. Ex.A1, dated 20.03.1971, is the settlement deed executed by Haji Hajia Ruhaiya Beevi in favour of her son, Halikuljaman, the plaintiff. It purports to settle the entire 30 cents in S.No.253/15, although the survey number had already been subdivided into S.Nos.253/15A and 253/15B. Ex.A1 could convey only such right as the settlor lawfully possessed; its recital of a larger extent could not confer title upon the plaintiff over land already covered by the anterior title deeds of the Moideen Rowther family.
43. The plaintiff also relies on Ex.A9, dated 07.07.1993, a release deed executed by certain cultivating tenants. Under that document, the tenants relinquished their tenancy rights in favour of the plaintiff upon receipt of consideration, and the extent in S.No.253/15 was stated as 30 cents. However, a release by cultivating tenants cannot enlarge the landowner's title: the anterior documents, namely Exs. B4, B1, and B2, establish that the plaintiff and his predecessors did not own the 9 cents comprised in S.No. 253/15B. Consequently, the recital of 30 cents in Ex.A9 does not advance the plaintiff's case.
44. Under Ex.B3, dated 10.04.2008, the first defendant purchased 4½ cents from the purchasers under Ex.B2. The first defendant claimed that the property purchased under Ex.B3 was the southern portion of S.No.253/15B. The first appellate Court accepted that claim and recognised his title. Such a conclusion is contrary to the documentary chain.
45. As already noted, under Ex.B4 the northern 5 cents was allotted to Pichaigani Rowther. Abdul Majeed, his son, conveyed the northern portion to Krishnamoorthy under Ex.B1; Krishnamoorthy, in turn, conveyed the same property under Ex.B2 to the vendors under Ex.B3. Therefore, the title claimed through Ex.B3 could relate only to the northern portion of S.No.253/15B, not to its southern portion. The observation in paragraph 13 of the first appellate Court's judgment that the southern 4½ cents belonged to the first defendant overlooks the identity and continuity of the property disclosed by Exs.B4, B1, B2, and B3.
46. While recognising the title derived by the successors of Pichaigani Rowther, who was allotted the northern portion, the first appellate Court failed to give effect to the allotment of the southern portion to Udumansha Rowther under the very same document, Ex. B4. There is no evidence that Udumansha Rowther alienated that portion. After him, his son Mohamed Sheriff succeeded to it, and his ownership is reflected in the tenancy record. Further, Ex. B5 indicates that Krishnamoorthy was recorded as a cultivating tenant in respect of the properties of Udumansha Rowther's branch. Although Krishnamoorthy purchased the northern portion, he remained a cultivating tenant in respect of the other land, and after his death, the second defendant continued in such possession.
47. The second defendant claims possession as a cultivating tenant under Mohamed Sheriff, on the strength of Ex. B5. In the absence of the owner of the southern portion, the first appellate Court could not adjudicate title to that portion in favour of the first defendant. More importantly, the documentary evidence establishes that the plaintiff and his predecessors owned only the land in S.No.253/15A and never acquired title to the 9 cents in S.No.253/15B, which originally belonged to Moideen Rowther and was divided under Ex.B4 between Pichaigani Rowther and Udumansha Rowther. The conflicting claims of the first and second defendants as to the northern and southern portions, and the Commissioner's observations regarding their respective possession, do not cure the fundamental defect in the plaintiff's title. Revenue records and the later family partition and settlement deeds relied upon by the plaintiff cannot prevail over the earlier registered documents. The plaintiff is therefore not entitled to either a declaration of title or recovery of possession in respect of the second item.
48. The substantial question of law is answered in the affirmative and in favour of the appellant. The first appellate Court erred in declaring the plaintiff's title to the northern 4½ cents, despite the plaintiff's failure to establish the title of the executants of Ex.A6 and despite Ex.B4, an earlier registered document, directly and substantially challenging that title.
Substantial Question of Law No.2
49. The question is answered in the affirmative and in favour of the appellant. The first appellate Court erred by failing to properly consider the legal effect of Ex.B.4, the earliest registered document, in the absence of evidence establishing the title of the plaintiff’s predecessors-in-interest.
50. Accordingly, the Second Appeal is allowed. The judgment and decree of the first appellate Court, to the extent they grant relief against the second defendant, are set aside, and the judgment and decree of the trial Court dismissing the suit in its entirety are restored. In the circumstances of the case, no order as to costs is made. Consequently, any connected miscellaneous petitions are closed.