JUDGMENT :

PRAYER : Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S. No.5 of 2008 on the file of the Subordinate Court, Pudukottai, dated 30.01.2009 confirming the Judgment and Decree in O.S.No.93 of 2002 dated 28.09.2007 on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam.

Aggrieved over the concurrent findings of the Courts below, the present Second appeal has been filed.

2. The parties are arrayed in the Second Appeal, as per their own ranking before the Trial Court.

3. The brief facts leading to the filing of the suit are as follows:

The suit property originally belonged to one Palaniyandi and his wife Chinnammal. They died leaving behind their two daughters, namely Packiyathammal and Chittammal. The plaintiff Kanagammal is the daughter of Packiyathammal and Chittammal had one son, namely, Ramamoorthy. The said Ramamoorthy died issueless and his wife also died. Therefore, the plaintiff is in possession and enjoyment of the suit property and the name has been mutated in the revenue records. Since the plaintiff is residing at Manapparai, the defendants, in order to grab the property, had made an attempt to encroach the property on 10.11.2001, which was thwarted by the plaintiff. Hence, the suit has been filed for declaration and for permanent injunction.

4. It is the contention of the first defendant that the plaintiff is not the legal heir of the original owners. The second defendant Nithya was given in adoption to one Ramamoorthy on 11.03.1984 as per the custom. Thereafter, the adoption was also registered on 28.03.1984. From the date of adoption, the second defendant has become the daughter of Ramamoorthy and she is in enjoyment of the property. Packiyathammal and Chittammal are not the legal heirs of Palaniyandi and Chinnammal. Hence, the contention that the property was jointly enjoyed by the plaintiff and Ramamoorthy was also denied. The second defendant, the adopted daughter has taken a stand that she was given in adoption on 11.03.1984 and the same was registered on 28.03.1984. It is the further contention that the plaintiff has no right in the suit property and the defendants are enjoying the property. Hence, he prayed for dismissal of the suit.

5. Based on the above pleadings, the Trial Court framed as many as six issues. The parties went on trial. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.7 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.11 were marked.

6. Based on the evidence and materials, the trial Court decreed the suit in favour of the plaintiff. The First Appellate Court also confirmed the findings of the Trial Court. Aggrieved over the same, the present Second Appeal came to be filed.

7. While admitting the Second Appeal, the following substantial questions of law have been framed for consideration :-

“1. Whether the findings of the Courts below are vitiated by its failure to consider the evidence of D.W.1 and D.W.2 establishing the registered Adoption Deed Ex.B.1 in the absence of any contra evidence besides the genuineness of Ex.B.1 was not disputed by any oral and documentary evidence ?

2. Whether the Courts below are right in not adverting to Section 50 of the Evidence Act evidencing the relationship between the parties and treating the second appellant as an adopted daughter of the deceased Ramamoorthy as well as the discharging of initial burden of proving adoption ?

8. The learned Senior Counsel appearing for the appellants vehemently contended that the plaintiff has not established the relationship with the original owners. The plaintiff is not at all residing in the present address and she is residing in some other place and the suit was filed only to grab the property. The plaintiff is not the daughter of Packiyathammal, as pleaded in the plaint. The plaint itself clearly shows that the plaintiff has no relationship with the original owners Palaniyand