JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Code of Civil Procedure against the judgment and decree of the learned Subordinate Judge, Bhavani in A.S.No.86 of 2004 dated 29.12.2006, confirming the judgment and decree of the learned Principal District Munsif Judge, Bhavani in O.S.No.3 of 2003 dated 06.11.2003.

(Heard through video conferencing)

1. This Second Appeal has been preferred challenging the judgment and decree dated 29.12.2006 passed by the learned Subordinate Judge, Bhavani in A.S.No.86 of 2004.

2. The first and second appellants were the defendants 1 & 2. The respondents were the plaintiff and third defendant. During the pendency of the appeal, the second appellant died and the appellants 3 & 4 were added as legal representatives for the second appellant.

3. The averments made by the parties in brief:-

The plaintiff has purchased the suit property on 09.03.1966 under the registered sale deed and has been in possession and enjoyment of the same. The old survey number for the suit property is S.F.No.447 and it measured an extent of 1 acre 52 cents. In resurvey, the suit properties were given with survey numbers 475/2 and 575/3. On 30.11.1943, the father of the defendants namely Muthu Gounder purchased 1.14 acres in the suit survey field. The plaintiff purchased the remaining 38 cents. After the death of Muthu Gounder, his children (defendants) succeeded the property and were enjoying the same. Due to wear and tear, the boundary line between the plaintiff and the defendants' land has become uneven and curvy. Taking advantage of the same, the defendants created a false claim over the property of the plaintiff. They also attempted to purchase the property from the plaintiff. On their failure to accomplish that, they had started to disturb possession and enjoyment of the plaintiff and hence, the plaintiff has filed a suit for declaration and permanent injunction against the defendants.

3.1 The second defendant has filed the written statement and the same was adopted by the first defendant also. In the written statement, it is admitted that the entire extent comprised in S.No.447 is 1 acre 52 cents and out of it, the defendants' father Muthu Gounder has purchased 1 acre 14 cents. In the said sale deed, the property of the plaintiff's vendor Sengotaiyyan's father Rasa Gounder has been shown as the southern boundary. And the said Rasa Gounder is a witness to the sale deed. This shows that the defendants' father had purchased the northern side of S.No.447 and Rasa Gounder had purchased 38 cents on the southern side in S.No.447. Since problem arose between Rasa Gounder and defendants' father Muthu Gounder, they demarcated their respective entitlement in the year 1960. During that time, the northern side of S.No.447 was more fertile, he was given with 28 cents and the plaintiff's father was allotted with 1 acre 24 cents. In the resurvey, the lands in the enjoyment of Rasa Gounder was given with resurvey number 475/2 and the lands in the enjoyment of Muthu Gounder was given with S.No.475/3. The mutation has also been effected in the name of the respective parties for the respective survey numbers. In the survey number 475/2, the plaintiff is entitled to only 28 cents and hence, the property particulars itself is wrong. So the plaintiff can claim the relief only in respect of 28 cents and not for 38 cents.

4. Basing on the pleadings, the trial Court has framed the following issues:-

“TAMIL”

5. During the course of trial, on the side of the plaintiff, four witnesses were examined as P.W.1 to P.W.4 and Exs.A1 to A4 were marked. On the side of the defendants, two witnesses were marked as D.W.1 & D.W.2 and Exs.B1 to B17 were marked.

6. At the conclusion of the trial and on appreciation of the evidence available on record, the learned trial Judge has decreed the suit in respect of relief of declaration and permanent injunction but dismissed it in respect of the relief of mandatory injunction. Aggrieved over that, the firs