Plaintiffs vendor had title over the property.

1. This Second Appeal is focussed as against the concurrent findings of both the Courts below vide judgments dated 13.09.1996 in A.S. No.36 of 1993 on the file of the learned Principal District Judge, Tuticorin, confirming the decree and judgment dated 18.11.1992 in O.S. No.352 of 1985 on the file of the learned District Munsif, Srivaikuntam.

2. The parties for convenience sake, are referred to hereunder according to their litigative status before the Trial Court.

3. The plaintiff filed the Original Suit as against the defendant for declaration of his title and for recovery of possession, based on his title deed namely the sale deed Ex.A-3 dated 2.4.1979 which was executed in his favour by Savari Muthu Nadar who earlier purchased the property from his father Maria Savari Muthu Nadar as per sale deed dated 25.1.1941.

4. Challenging and impugning, denying and gainsaying the allegations/averments of the plaintiff relating to the Suit claim, the defendant filed the written statement resisting the prayer of the plaintiff.

5. The First Appellate Court confirmed the judgment of the Trial Court by giving a finding to the effect that the vendor of the plaintiff had tide and conveyed it as per Ex.A-3, in favour of the plaintiff to an extent of 8 1/6 cents of land on the southern portion of the entire extent of 20 cents of land which originally belonged to Maria Savari Muthu Nadar.

6. Being aggrieved by and dissatisfied with the judgments of both the Courts below, the Second Appeal has been filed on the following main grounds:

(i) Both the Courts below erroneously relied upon the findings in the dismissal judgment in O.S.No.140 of 1980 which was filed by the same plaintiff as against the same defendant herein who is the appellant herein. Hence, the defendant had no opportunity of challenging the findings there under as against him.

(ii) The suit property herein is not the subject matter of the sale under Ex.A-1. The deceased-Savari Muthu, the vendor of the plaintiff and his two sisters jointly had right over the said 20 cents of land.

(iii) Both the Courts below failed to note that Ex.A-3, the sale deed dated 2.4.1979, is not a true and valid document as it was a fabricated one and it emerged out of impersonating Savari Muthu Nadar.

(iv) The Trial Court has not appreciated the evidence properly as against Ex.A-3.

(v) Savari Muthu Nadar was suffering from mental derangement at the time of emergence of Ex.A-3 and this fact was not considered by the Trial Court, which also failed to note that the defendant acquired prescriptive title by adverse possession.

7. Based on the main grounds set out supra, my learned Predecessor formulated the following substantial questions of law:

"(i) Whether the Suit for possession of undivided 8 1/6 cents without partition is maintainable and decree passed therein is sustainable in law?

(ii) Whether on the finding of long possession, over the statutory period, the Court ought to have found in favour of the defendant, acquisition of title by adverse possession?"

8. Heard the learned Counsel for the appellant in entirety; however the learned Counsel for the respondent is absent.

9. The learned Counsel for the appellant would advance his argument to the effect that the Suit itself was bad for want of a prayer for partition in view of the fact that Devadasan, the defendant herein, is one of the co-sharers admittedly and there was no relationship of landlord and tenant between the plaintiff and the defendant.

10. The learned Counsel for the appellant would portray and put forth his argument further to the effect that Ex.A-3, the sale deed dated 2.4.1979 allegedly executed by Savari Muthu in favour of the plaintiff, is an illegal document as Savari Muthu was out of his compos mentis at the time of allegedly executing the sale deed and to that effect. the defendant in paragraph No.4 of the written statement, specifically raised a specific plea.

11. The first substantial question of law is relat