Finding of facts of lower appellate court can be interfered with.

1. Defendants in O.S.No.265 of 1980, on the file of District Munsifs Court, Nagercoil, are the appellants.

2. Plaintiff filed the suit for bare injunction restraining the defendants from interfering with his possession of the property which he purchased under Ex.A-1, dated 11.7.1977. It is his case that defendants who are prominent members of the locality are attempting to interfere with his possession. He also said that immediately after the purchase of the property, he installed some idols and was offering prayers. In view of the interference by the defendants, he filed the suit for injunction.

3. In the common written statement filed by the appellants, they admitted the title of the plaintiff. But their case is that these defendants who are members of an Association, wanted to put up a Temple. It is their case that on 1.12.1977, Hindu Nadars of Alankottai decided to establish a new temple for their worship, for which they elected certain members as trustees, the first defendant being the Managing Trustee. Pursuant to the decision on 1.12.1977, the trustees selected 17 1/2 cents in Survey No.9690 for establishing the temple. In the said 17 1/2 cents, plaint schedule having an area of 5 cents was also included. On 6.12.1977, plaintiff also agreed to sell the property to the Nadar Sangam for a sum of Rs.1,150 and received a sum of Rs.850 as advance, and the balance was agreed to be paid at the time of actual sale. When the advance amount was paid, possession was also handed over. Thereafter, in the entire property including the plaint schedule, some idols were installed, the details of which are given in paragraph 7 of the written statement. Except the plaintiff and one Arumugha Perumal Nadar, all others executed sale deed, and when attempt was made to get sale deed from plaintiff, he filed the suit and got an injunction. Defendants have already issued a notice seeking enforcement of the oral agreement for sale, for which a reply was sent denying the agreement. It is said that the exclusive possession is with the defendants, and the suit for injunction is not maintainable.

4. The trial court, as per judgment dated 23.6.1981, held that the plaintiff has miserably failed to prove his possession, and, taking into consideration the lie of the property as verified and reported by the Commissioner, the case of the defendants is more probable. It dismissed the suit.

5. Before the trial court, the plaintiff examined himself as P. W. 1 and an independent witness was examined as P.W.2, and documents Exs.A-1 to A-4 were marked. On the side of the defendants, Exs.B-1 to B-12 were marked. Commissioners Report and Plan were marked as Exs.C-1 and C-2. After evaluating the evidence, both oral and documentary, the trial court dismissed the suit as stated above. Against that, plaintiff preferred A.S.No.5 of 1982, on the file of Sub Court, Nagercoil, lower appellate court found that the agreement for sale as alleged by the defendants was not proved and, therefore, possession must be with the plaintiff. The judgment of the trial court was set aside. The appeal was allowed. The suit was decreed as prayed for. It is against the said judgment, defendants have preferred this second appeal on the following substantial questions of law:

“(1) Whether the learned Judge is correct in relying upon Exs.A-1 to A-4, the documents subsequent to the suit for giving a finding with regard to possession. and

(2) Whether the court below is right in giving a finding with regard to possession without considering the Commissioners report and the plan Exs.C-1 and C-2.”

6. Learned senior counsel for the appellant submitted that the lower appellate court has not considered material evidence which has vitiated the entire decision. Learned counsel submitted that even though the lower appellate court has referred to Exs.C-1 and C-2, no reference was made to them while discussing the evidence. It has decreed the suit only for the reason that the oral agreement for sa