1. Challenging the concurrent findings entered by the Principal Munsiff's Court, Thiruvananthapuram in O.S.No.925/2001, followed by those of the Additional District Court-III, Thiruvananthapuram in A.S.No.121/2012, the defendants in the suit have come up with this second appeal.

2. The suit is one for declaration of title and possession, recovery of possession of plaint A and B schedule properties with mesne profits in case the defendants are found in possession of the same, and for perpetual injunction. A relief of mandatory injunction has also been sought for, for directing the defendants to vacate the plaint B schedule property.

3. The plaint A schedule property, having an extent of 28 cents, is in Survey No.2739/1/2 of the Kadakampally Village and the same originally belonged to late Macri D' Cruz and her husband Joseph D' Cruz. They settled the property in favour of their daughter Pauline James and her husband James as per Ext.A1 settlement deed No.2985/1122 ME. According to the plaintiff, Pauline James and her husband James had four children namely Mary James, Mercy James, Margaret and Mourin Presca, out of whom Margaret is no more. They are all settled in Singapore, after obtaining citizenship there. On the death of James, his half oodukur right in the property devolved on his wife Pauline and her aforesaid four children. It is the case of the plaintiff that in consideration of their natural love and affection towards the plaintiff, they decided to gift the plaint schedule properties to the plaintiff, since they are settled in Singapore. They executed Ext.A2 power of attorney in favour of Roy Sanker who is the husband of the plaintiff, thereby empowering him to execute a gift deed in favour of the plaintiff in respect of the plaint schedule properties. Thereafter, Roy Sankar executed Ext.A3 gift deed No.947/2000 in respect of the plaint schedule properties in favour of the plaintiff on the strength of Ext.A2 power of attorney. According to the plaintiff, she took possession of the plaint A schedule property and the residential building described as plaint B schedule in it. Defendants are the direct brothers of the plaintiff. Presently, the 2nd defendant is residing in the plaint B schedule building as permitted by the plaintiff.

4. According to the plaintiff, when she approached the Village Officer for remitting the tax for the property it was learnt that the defendants had executed Ext.B18 partition deed No.4028/1998 in respect of the plaint schedule property without any authority and power, and effected mutation of the properties in their names. When her request for effecting mutation in her favour was turned down, she approached the higher revenue authorities and finally the District Collector cancelled the mutation in favour of the defendants. When the plaintiff requested the defendants to vacate the plaint B schedule building, they resisted the plaintiff and obstructed her from entering in the plaint A schedule property also, and hence the suit.

5. The defendants contended that the plaintiff had never got title or possession over the plaint schedule properties. The fact that the plaint A schedule originally belong to Pauline James and James is admitted. It was contended that, after their marriage, they left India and settled in Malaysia and thereafter, they had never returned to India. It is also contended that they were not being heard of since 1974, and they would have been heard of, had they been alive. Therefore, defendants contended that Pauline James and James are presumed to be dead. According to the defendants, they have been in absolute possession and enjoyment of the plaint schedule property since 1974 continuously, uninterrupted, openly and excluding the true owner and thereby they perfected their title over the property through adverse possession. According to them, thereafter, they executed Ext.B18 partition deed.

6. It was further contended that Pauline James and James died intestate without issu