JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 07.11.2017 passed in A.S.No.6 of 2017 on the file of the II Additional Subordinate Judge at Nagercoil reversing the judgment and decree dated 06.09.2016 passed in O.S.No.166 of 2014 on the file of the I Additional District Munsif Court, Nagercoil.)

1. The defendants 2 and 3 are the appellants.

2. The plaintiff filed O.S.No.166 of 2014 before the I Additional District Munsif, Nagercoil for declaration of title, possession and enjoyment over the suit schedule property and for demarcation of the plaint schedule property. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.6 of 2017 before the II Additional Subordinate Court, Nagercoil. The learned Subordinate Judge allowed the appeal and decreed the suit as prayed for. As against the same, defendants 2 and 3 have filed the above second appeal.

3. The plaintiff had contended that originally the plaint schedule property and other properties were owned by one Narayanavadivu Nadachi. She had six children, three daughters by name, Nachiar, Chellammal and Lakshmi and three sons by name Retnaswamy (plaintiff), Gopalakrishnan and Thangavel. According to the plaintiff, the said Narayanavadivu Nadachi had executed a settlement deed in favour of his three daughters each for 30 cents out of 102 cents owned by her. The plaintiff further contended that the balance 12 cents was retained by Narayanavadivu Nadachi. According to the plaintiff, she has executed a registered Will on 27.01.1973 bequeathing four cents of land to her sons jointly namely Retnaswamy and Gopalakrishnan. The other son namely Thangavel died without leaving any issue. According to the plaintiff, the said Gopalakrishnan also died leaving without any issues and hence, the plaintiff become the absolute owner of the suit first item having 10 cents and suit second item having 2 cents of the property in Resurvey No.222/3.

4. The plaintiff further contended that the defendants 2 and 3 have filed O.S.No.306 of 2009 before the I Additional District Munsif Court, Nagercoil as against the plaintiff and others seeking partition of 12 cents of land which was not covered by three settlement deeds. The said suit was dismissed on 01.10.2013. The plaintiff further contended that the property in possession of the plaintiff required demarcation in view of certain dispute. Hence, he prayed for declaration of title, possession and also for demarcation of the plaint schedule property.

5. Though summons were served, the first defendant did not engage a counsel or appear person. The defendants 2 and 3 engaged a counsel, but they did not file a written statement. Hence, all the defendants were set exparte. The plaintiff's son examined as PW1 and Exhibits A1 to A11 were marked on the side of the plaintiff in the trial Court.

6. The trial Court found fault with the plaintiff for not entering into the box to give evidence. The trial court gave a finding that no medical records have been produced to show the illness of the plaintiff for not deposing before the Court. The trial court also found that Exhibit A1 Will is of the year 1973 and the plaintiff's son who was not born in the year 1973 has been examined as PW1. Hence, the trial Court rejected the evidence of PW1.

7. The trial Court also found that the plaintiff has claimed title and possession over the resurvey No. 222/3 based on Exhibits A6 to A9, but in those documents, the old survey No.1622 is not found. The trial Court also found that the plaintiff has not established his possession over the suit schedule property. Based upon the said findings, the trial Court dismissed the suit.

8. The First Appellate Court gave a finding that PW1 is none other than the son of the plaintiff and he is capable of giving evidence on behalf of his father. Even though, Exhibit A1 Will has not been proved in accordance with Section 68 of the Indian Evidence Act, the defendants have not filed an