The burden of proof shifts to the defendant who pleads possession contrary to the recital in the documents, and the plaintiff must establish his right over the suit property with cogent and acceptable evidence.

JUDGMENT :

G. JAYACHANDRAN, J.

Prayer: This Second Appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 16.06.2009 passed by the learned Principal District Judge, Villupuram in A.S. No. 5 of 2009 confirming the judgment and decree passed by the learned Principal Subordinate Judge, Tindivanam in O.S. No. 50 of 2006 dated 30.10.2008.

1. The defendant in the suit is the appellant before this Court. Having lost the suit before the Courts below, the present second appeal is filed. The suit laid by the plaintiff/ respondent for declaration of title and for consequential injunction restraining the defendant/appellant and his agents from disturbing the plaintiff’s peaceful possession and enjoyment of the suit property.

2. The case of the plaintiff is that, the suit schedule property consisting of three items originally belonged to one Natesa Mudaliar. In the year 1966, the same was purchased by the grandmother of the plaintiff Saraswati Ammal, vide sale deed dated 25.10.1966. Subsequently, during re-survey, the suit schedule properties; Item No. 1 was re-numbered as R.S. No. 110/13; Item No. 2 was re-numbered as R.S. No. 110/12 and Item No. 3 was re-numbered as R.S. No. 110/11. Again, the suit schedule properties; Item Nos. 1 to 3 were sub-divided as 596/18; 596/19 and 596/12 respectively.

3. Out of three cents of land in S. No. 314/14, in one cent of land, a house was constructed by Saraswati Ammal and the same was under her enjoyment. The plaintiff on 15.02.2006, settled this property along with other properties to her son Mohanraj. In the said settlement deed, instead of giving the total extent of the land, erroneously linear measurement of the house alone was mentioned. When this came to the notice, a rectification deed was registered on 11.06.2006. The constructed house and the garden portion are shown in Item No. 3 of the suit schedule property.

4. The plaintiff wanted to demolish his old house, settled in his favour by Saraswati Ammal and to construct a new house. The defendant trying to interfere and making attempts to forcibly take the possession of the property. Hence the suit for declaration and consequential injunction.

5. The defendant in his written statement denied the allegations and averments found in the plaint. According to the defendant, initially, the property in S. No. 314/14 measuring three cents bounded on the East of vacant land belonging to C. Vinayaga Mudaliar, West of Dakshinamoorthy Mudaliar house, South of Drowpathi Amman Koil Lane, North of second Item property comprised in it, the plot measuring 36 feet East to West and 32 feet South to North and the house constructed in it. S. No. 314/15 measuring two cents out of seven cents bounded on the East of C. Vinayaga Mudaliar farm, West and North of Dakshinamoorthy Farm, South of first item property. 1/6th share in the Well situated in three cents of S. No. 314/16 (inclusive of right of the usual pathway for bringing water), belong to S. Sabapathy Mudaliar of Kallalampoondi. The said properties were purchased by Chinnasamy Reddiar, from Sabapathy Mudaliar vide registered sale deed dated 24.03.1958 and was in his possession and enjoyment. After the demise of Chinnasamy Reddiar, his son Lakshmi Narayanan took possession of it and was in enjoyment of the aforesaid properties. Vide registered sale deed dated 21.06.1983 he sold the said property to Irusammal, w/o Mannangatti Mudaliar and the defendant.

6. The linear measurement as found in the sale deed executed by Natesa Mudaliar in favour of Saraswati Ammal under the sale deed dated 25.10.1966, the measurement of the land and building in S. No. 314/14 was shown as East-West 15 Jathi Adi (Ihjp mo) (Tamil measurement-near about 10.46 inches) and South West 33 Jathi Adi (Ihjp mo). While so, after encroaching upon six feet into the land of the defendant, the plaintiff trying to seek declaration over and above their title. The present measurement of Saraswati Ammal house on East West is 21 fee