The burden of proof lies on the party claiming adverse possession, and the plea of adverse possession should be proved convincingly by the defendant.

1. This Second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 23.9.2005 passed by the Subordinate Judge, Poonamallee, in A.S.No.37 of 2004 reversing the judgment and decree dated 8.4.2004 passed by the District Munsif cum Judicial Magistrate, Ambattur, in O.S.No.789 of 1996, which was filed for mandatory and permanent injunctions.

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

3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs:

"To pass a judgement and decree

"a. for declaration of plaintiff's title to the 'B' schedule property and

b) for recovery of vacant possession of the 'B' schedule property after ejecting the defendants therefrom and after removing the superstructure, put-up by the defendants.

c) directing the defendants too pay future damages at the rate of Rs.1,000/-p.m.from the date of the plaint till the date of delivery.

d) directing the defendants to pay the cost of this suit." (extracted as such)

(b)Written statement was filed resisting the suit.

(c) Whereupon the trial Court framed the issues. On the plaintiff's side, the husband of the plaintiff examined himself as P.W.1 and Exs.A1 to A3 were marked. The husband of D5 examined himself as D.W.1 and Exs.B1 to B22 were marked.

(e) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for.

4. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by the defendants on various grounds and also suggesting the following substantial questions of law:

"1. Whether the lower appellate Court failed to consider the adverse possession of appellants in the suit property for more than 4 decade?

2. Whether the lower appellate Court considered the non-joinder of necessary parties to the case?

3. Whether the lower appellate Court considered the respondent paid court fee according to the value of the suit property?

4. Whether the lower appellate Court considered the respondent seeking the declaration relief only for 'B' schedule mentioned property and not for the entire 'A' schedule property?

5. Whether the lower appellate Court considered the appellants had acquired a title by adverse possession for over the statutory period?"

(extracted as such)

5. However, my learned predecessor thought fit to frame the following substantial question of law:

"Whether the lower appellate Court failed to consider the adverse possession of the appellants in the suit property for more than four decades?"

6. The gist and kernel, and the pith and marrow of the arguments as put forth and set forth by the learned counsel for the appellants/defendants would run thus:

(i) The first appellate Court upset the discernible judgment of the trial Court, by mis-understanding the gamut of the case.

(ii) The schedule of property itself is not clear. The antecedent title deed to the plaintiff's title deed has not been produced, but the first appellate Court did not take note of it.

(iii) The documents filed on the appellants/defendants' side would exemplify and demonstrate that for about four decades anterior to the filing of the suit, the defendants had been in possession and enjoyment of the suit property and thereby acquired title by adverse possession, which fact was not considered by the first appellate Court.

(iv) No Advocate Commissioner was appointed to locate the suit property and identify the same.

(v) The unregistered sale deed of the year 1961 executed by the same vendor, who subsequently sold the suit property to the plaintiff, would demonstrate and display that the de