JUDGMENT :

N. SESHASAYEE, J.

1. The plaintiffs who were successful before the trial Court in their suit for declaration of plaintiffs' title over the suit property and with an alternate relief of mandatory injunction to remove the construction in the suit property, have approached this court in this appeal. Parties would be referred to by their respective ranks before the trial court.

Pleadings:

2. The facts which provided a cause for the action to the plaintiffs are now stated:

(i) The property around which the litigation revolves is a block of dry land measuring 3.71 acre in Sy. No. 203/3 of Kilavallanadu village. This property and other originally belonged to a certain Alagarammal. Alagarammal had a daughter and a son. They were Alvarammal, and Perumal Naicker. Of them Perumal Naicker died as a bachelor. (Beyond this reference here, Perumal Naicker does not have any further role in the litigation)

(ii) On the demise of Alagarammal, the entire suit property and others devolved on her daughter Alvarammal. Later when Alvarammal died, the properties that she had, were succeeded to by her sons Perumal Naicker and Ganga Naicker.

(iii) In a partition between the (second mentioned) Perumal Naicker and his brother Ganga Naicker, the suit property came to be allotted to the share of Perumal Naicker. The plaintiffs are the heirs of the Perumal Naicker.

While so, when they faced obstruction from the defendant to their title, they laid the suit.

3. The defendant has pleaded: While Perumal Naicker was alive, on 20.03.1992 under Ext. B. 1 sale deed, the suit property was sold by him to one Janakaraj, and he in turn had sold the same to one Sonai on 01.07.2005 under Ext. B. 3, sale deed. The Revenue Records too were mutated in the name of these purchasers. The defendant is only a Power of Attorney of the said Sonai, and that his principal (the purchaser under Ext. B. 3) he had put up a compound wall around the property.

4. The trial and the first appeal:

4.1. The dispute went to trial. For the plaintiffs, the third plaintiff was examined as PW-1. The documents they produced were marked as Exts. A-1 to A-4, of which Ext. A. 3 is the death certificate of Perumal Naicker. It showed that Perumal Naicker had died on 21.07.1977. To substantiate the correctness of Ext. A. 3, the plaintiffs have taken steps to summon the medical records of the Government Medical College Hospital, Thoothukudi. In response to that, PW-2, a staff of the hospital had appeared before the Court and produced Ext. A. 4, communication to the effect that the records would be preserved only for 7 years, and that the records sought to be produced were destroyed. With no credible rebuttal evidence forthcoming to dislodge the evidentiary value of Ext. A. 3, the trial Court accepted it and acted upon it.

4.2. Turning to the defendant's evidence, he has produced five documents which came to be marked as Exts. B-1 to B-5. Of them Ext. B-1 is critical in the context of the case, since Ext. B. 1 sale deed in favour of the predecessor-in-title of the principal of the defendant was executed the same Periasamy in 1992. To prove his possession the defendant has produced Ext. B. 5 dated 01.02.2012, which is a few years after the institution of the suit, and the trial court took note of it. Ultimately it proceeded to decree the suit.

4.3. When the matter was taken up in the first appeal by the defendant, the first appellate Court accepted the genuineness of Ext. A-3 death certificate, but has acted on the oral testimony of PW-1, wherein he has deposed that the property was in the possession of the defendant, and that he had put up a compound wall along the property. Achammal, a cousin of the plaintiffs, was examined as PW-4, and she has deposed that she had not gone to the suit property. It would then proceeded to overturn the decree of the trial court, and broadly its line of reasoning is:

(i) Firstly, that the suit was laid only against the power of attorney of Sonai, and that Sonai (who is not array