JUDGMENT

1. The Second Appeal is filed by the Third Defendant against the judgment and decree dated 16.11.1998 in A.S. No. 1 of 1998 on the file of the Subordinate Court, Sivagangai, confirming the judgment and decree dated 15.04.1996 in O.S. No. 209 of 1993 on the file of the District Munsif Court, Manamadurai.

2. The averments in the Plaint are as follows:

The Respondents/Plaintiffs purchased the suit property from one Samayana Thevar/father of the Defendants on 1.7.1967. From that date onwards they are in possession and enjoyment of the suit property. Since the property is not fit for cultivation, they are enjoying the fruits of Palm tree situated in the suit property. The re-survey proceedings in Patta No. 500 has been granted in favour of the Plaintiffs. At that time, he came to know that the boundaries are not correlated with Survey No. 169/6. Hence, he approached the Revenue officials. The correct Survey No. 169/11A has been given in favour of this Third Defendant who is none other than the son of vendor of the suit property. When he approached, the Defendants wantonly avoiding to change the Patta in favour of the Plaintiffs. From the date of purchase, the Respondents/Plaintiffs are in possession and enjoyment of the property situated in Survey No. 169/11A. But in the Sale Deed, it was mentioned as 169/6. The Defendants 1 and 2 Attestors of the Sale Deed executed in favour of the Respondents/Plaintiffs. The Appellants/Defendants are estopped from questioning the same. The Respondents/Plaintiffs constrained to file the Suit for declaration of title to the suit property and for consequential permanent injunction alternatively for the recovery of possession and prayed for decree.

3. The gist and essence of the Written Statement filed by the Third Defendant are as follows:

The suit property is absolutely belongs to this Defendant/Appellant. The Respondents/Plaintiffs never in possession and enjoyment of the suit property and Patta has been given in his name. The revenue records clearly proved that the Respondents/Plaintiffs were not in possession of the suit property. In the Sale Deed, it contains survey No. 169/6. Patta also transferred in the name of the Respondents/Plaintiffs in respect of the property bearing Survey No. 169/6. The Respondents/Plaintiffs never in possession and enjoyment of the property in Survey No. 169/11A. No mutation of Revenue Records has been done. Since the Sale Deed contain incorrect boundary, now the Respondents/Plaintiffs want to take advantage and claiming property situated at Survey No. 169/11A, but that property has not been sold in favour of the Respondents/Plaintiffs. So, the Respondents/ Plaintiffs are not the owners of the property. The Appellant/Third Defendant was in possession and enjoyment of the suit property. The suit survey No. 169/11A is originally belonging to Kandappa Devar. After his death, his two sons Samayana Devar, father of the Defendants and Ramu Devar succeeded the suit property. They partitioned the property. The suit property was allotted to this Defendant-Samayana Devar. East of the suit property was allotted to Ramu Devar. Ramu Devar was in possession, after his death, his wife Irulayee was in possession and enjoyment of the suit property. Irulayee sold the property to one Sakaralingam. The suit property was in possession of the Defendants 1 to 3 till the partition taken place in the year 1956. In the partition during the year 1956, the suit property was allotted to the Appellant/Third Defendant. In pursuance of that only mutation of Revenue Records has been made and sub-division has been effected and patta has been issued under Patta No. 419. After resurvey, the Patta number has been changed as 163 which stands in the name of the Appellant/Third Defendant. The Appellant/Third Defendant has mortgaged the property with Tamil Nadu Khadi and Industries Board and obtained loan and repaid the loan amount. So, the Appellant/Third Defendant is in exclusive possession and he has