( 1 ) THIS appeal arises out of the judgment and decree in O. S. No. 262 of 1988 on the file of the District Munsif, Palamaner, Chittoor district as confirmed by the District Judge, chittoorin A. S. No. 99 of 1994 dt. 31 -3-1999.

( 2 ) BOTH the Courts below concurrently held against the appellants/plaintiffs and dismissed the suit as well as the appeal. The learned Counsel for the appellants Sri Vidya sagar Vehemently contended that both the courts below gravely erred in holding that the appellants failed to produce any evidence to show that the deceased respondent obtained decree in O. S. No. 258 of 1985 on the file of the District Munsif, punganur by playing fraud on the appellants by making an endorsement on the summons that the appellants refused to receive summons and the assertion of the appellants was denied by the respondents while they were in the witness box.

( 3 ) THE factual matrix of the case are that an extent of 2 cannies 39 guntas and 6 veesams in the estate of Gundugallu Village, punganur Jamin Estate was purchased by one Achappa Chetty was is the father of the 1st appellant and grand-father of the 2nd appellant long back. It is also not in dispute that the western side of the land was in possession and enjoyment of the respondents. It is also there in the evidence of the 1st respondent that in the year 1942 he mortgaged an extent of 2 cannies 39 guntas 6 Veesas of land, which is equal to 2 acres 99 cents with the 1 st appellant herein and in the year 1948 he redeemed the mortgage property. Subsequently the estate was abolished and survey operations were conducted in the village and the lands owned by the appellants as well as the respondents measuring about Ac 5. 61 cents were shown in S. No. 98/3. Subsequently, in the year 1985, the respondent-deceased filed O. S. No. 258 of 1985 on the file of the district Munsif, Punganur seeking partition of the properties and delivery of possession of his share and also sought for permanent injunction restraining the appellants from interfering with his possession and enjoyment of the land for which he is entitled to. This suit seemed to have been decreed exparte and thereafter, the respondent filed ia No. 1846 of 1987 for passing of the final decree. At this stage, the appellants having received the notice seemed to have filed an application to set aside the ex parte decree but the same did not yield results. Hence they filed a suit in O. S. No,262 of 1988 seeking to set aside the preliminary decree passed in O. S. No. 258 of 1985 as the same was obtained by the respondents by playing fraud on them and also for a permanent injunction against the respondent-deceased from interfering with the possession of the suit schedule land.

( 4 ) FROM the pleadings it is seen that the dispute is now for a small extent of 19 cents. If the total extent of the land is divided equally, both the parties will get Ac. 2. 80 cents i. e. , what exactly the appellants have claimed in the suit. But the respondents have obtained a preliminary decree, for Ac. 2. 99 cents. If the decree obtained by the respondents is allowed to strand, even as per the version of the appellants, they may loose about 18 cents of dry land.

( 5 ) AS stated supra, both the courts concurrently found that the appellants failed to prove that the respondents have obtained a decree in O. S. No. 258 of 1985 fraudulently by obtaining an endorsement on the suit summons statiny that the appellants have refused to receive summons. Aggrieved by the judgments of both the courts below, the present second appeal is now filed by the appellants questioning the correctness of the judgments of the courts below.

( 6 ) SRI Vidya Sagar, learned counsel for the appellants raised two contentions: (1) As the respondents did not deny the specific allegation made against them that they have obtained a preliminary decree fraudulently in o. S. No. 258 of 1985, a presumption will arise that they have admitted the allegations mad