1. This second appeal is filed by the defendants inveighing the judgement and decree dated 29.07.2005 passed by the learned Principal Subordinate Judge, Mayiladuthurai in A.S.No.165 of 2004 reversing the judgment and decree dated 22.09.2004 passed by the learned District Munsif, Sirkazhi in O.S.No.112 of 1997.

2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

3. A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus:

a. The plaintiffs filed the suit seeking the following reliefs:

“to pass a decree against the defendants for recovery of plaint B schedule property after removal of superstructure, for future profits and to award cost of the suit.”

(extracted as such)

b. The defendants filed the written statement resisting the suit.

c. Whereupon issues were framed and on the side of the plaintiffs, the third plaintiff Sivaraman, examined himself as PW1 and marked Exs.A1 to A12. On the defendants' side, D1 and D2 examined themselves as D.Ws.1 and 2 along with DW3 and marked Exs.B1 to B19 and the Court documents Exs.C1 to C7 were also marked.

d. Ultimately, the trial court dismissed the suit. As against which, appeal was filed by the plaintiffs, whereupon, the appellate court reversed the judgment and decree of the trial court and decreed the suit.

e. Challenging and impugning the judgment and decree of the first appellate court, the defendants have preferred this second appeal on various grounds and also suggesting the following substantial questions of law:

1. Whether the lower appellate court is right in decreeing the suit for a larger extent than that of the plaint prayer, whether such a decree is not perverse?

2. Whether the court below was right in decreeing the suit filed only for recovery of possession when the title is disputed by the appellants herein which is against the judgment of this court reported in 1998(1) CTC 501?

3. Whether the lower appellate court was right in shifting the burden of proof on the appellants/defendants to disprove the case of plaintiffs contrary to Section 101 of the Indian Evidence Act?

4. Whether the lower appellate court was right in holding that boundaries will prevail over the extent, when the respondents/plainitffs and their ancestors, specifically expressed their intention vide Ex.A12 that they have right/title only to 100' North-South?

(extracted as such)

4. My learned predecessor, while admitting the second appeal, virtually adapted the aforesaid substantial questions of law.

5. Heard both sides.

6. The indubitable and indisputable or at least the undeniable facts would run thus:

One Josyam Swaminatha Iyer and his relatives owned property to the South of Patel road previously known as Agraharam street. They got the property partitioned into three shares and the linear measurements were set out to the effect that each sharer was entitled to 21' feet from East to West and 100' feet from North to South. But in Ex.A1 the Will dated 23.05.1941, the schedule of property, is found set out thus:

TAMIL

As per Ex.A12 dated 30.08.1958, there was some arrangement emerged among those three sharers and in that, the said oral partition of the property among them into three shares is found reflected and the schedule of property found therein would run thus:

TAMIL

At this juncture, it is just and necessary to refer to the schedule of properties as found set out in the plaint.

"A" Schedule property (ABCD in plaint plan):-

Mayiladuthurai Registration District, Sirkali Sub Registry, Sirkali Taluk, Sirkali Town, Kaivilancherry Vattam, Thenpathi R.S.No.111/10-natham Jari East West -21, North - South-100' About A.0-05 cents.

Boundaries:- West of the houses of Gowri W/o Arul @ Vaithyanathan and Kaliyaperumal, East of 3rd Plaintiff's house in which the first plaintiff is residing in a portion, South of Patel Street and North of VOC North