JUDGMENT :

R. Tharani, J.

1. Heard the learned counsel appearing on both the side.

2. This appeal is filed against the Judgment and Decree passed in A.S. No. 8 of 2008 dated 11.03.2009 on the file of the learned Subordinate Judge, Srivilliputhur reversing the judgment and decree made in O.S. No. 193 of 2004 dated 26.10.2007 on the file of the learned Additional District Munsif, Srivilliputhur.

3. The appellant herein is the first defendant, the respondents 1 to 3 herein are the plaintiffs and the fourth respondent herein is the second defendant in the suit. The respondents 1 to 3 herein have filed a suit in O.S. No. 193 of 2004 before the learned Additional District Munsif, Srivilliputhur for a prayer of declaration of title and for injunction and as an alternative prayer for recovery of possession and for mesne profits. The trial Court after trial dismissed the suit. Against that Judgment and decree, the respondents 1 to 3 have preferred an appeal in A.S. No. 8 of 2008 before the Sub Court, Srivilliputhur. The learned Sub Judge reversed the Judgment and decree passed by the trial Court. Against which, the appellant herein has preferred this appeal.

4. The case of the plaintiffs is that the suit second schedule property is the part and parcel of the first schedule property and the first schedule property was purchased by the plaintiffs on 27.06.1988 from one Ramasubramanian and others. As there is a dispute in the measurement between the plaintiffs and Charity Trust, there was an agreement between the Manager of the trust and the plaintiffs on 03.06.1990. The suit property was described as the second schedule property in the agreement. When the plaintiffs tried to construct a wall upon the suit property, the first defendant who is running a tea shop in the municipal road objected the construction. The defendant lodged a complaint even after being admonished by the plaintiffs. The first defendant is disturbing the possession of the plaintiffs. The first defendant sold out the second schedule property to the second defendant and hence, this case is filed by the plaintiffs.

5. The brief averments of the first defendant is that the suit second schedule property is in possession of the first defendant for a very long period. The father of the first defendant was running a fire work shop in that property and he was enjoying the property for more than 37 years. The agreement dated 03.06.1990 was a false one and it was not binding upon the first' defendant. The second schedule property mentioned in the agreement belongs to the first defendant. In the sale deed of the plaintiffs, it was clearly stated that the property is situated on the south side of the Dharmalingaraja house site. After the house of Dharmalingaraja, there was a four feet lane and a vacant house site and that the vacant house site belong to the first defendant. The first defendant sold out the property to the second defendant on 07.05.1992. The southern boundary for the first schedule property is vacant site that belongs to N.R. Krishnamaraja charity. But in the sale deed, the property was mentioned as incomplete construction. Only with an idea to grab the second schedule property, the unregistered agreement dated 03.06.1990 was created. Only because the plaintiffs were not the owners of the property, the approval for construction was not granted to the plaintiffs. The first defendant is running the tea shop in his own lands not in the municipal road. When the plaintiffs tried to demolish the tea shop, the mother of the first defendant lodged a complaint before the police. The plaintiffs are not in possession of the property and they are not entitled for the second schedule property. On the basis of the pleadings, the trial Court framed the following issues:

6. Three witnesses were examined as P.W. 1 to P.W.3 and 12 documents were marked as Exs. A1 to A12 on the side of the plaintiffs, and two witnesses were examined as D.W. 1 and D.W. 2 and 10 documents were marked as Exs.