JUDGMENT

The plaintiff who suffered concurrently before the Trial Court as well as the First Appellate Court, in a suit for declaration of tile and permanent injunction is the appellant before me.

2. The parties are described as per their litigative status before the Trial Court.

3. The material facts that would be necessary to decide the above Second Appeal are as hereunder:

3.1. The plaintiff's claim is that she is the wife of the first defendant and defendants 2 and 3 are son and daughter respectively of one Chinnsamy, the junior paternal uncle of the first defendant. It is the case of the plaintiff that on 08.07.1983, the first defendant settled the suit property in favour of the plaintiff, his wife, out of love and affection. The plaintiff claims that she has been paying taxes for the said property and that patta has also been changed in her name and consequently, she has been in absolute possession of the suit property. Alleging that on 10.04.2005, the defendants attempted to interfere with the plaintiff's possession, the plaintiff instituted the suit.

3.2. The defendants filed written statement denying the claim of the plaintiff that she is the wife of the first defendant. According to the defendants, the settlement deed was not executed by the first defendant as claimed and they would refer to decree in O.S. No.196 of 1986, in and where, by the first defendant has filed the suit represented by his Guardian and uncle, Chinnasamy, the father of defendants 2 and 3, declaring himself to be the owner of the suit property. It is claimed by the first defendant that as he was suffering from mental illness at the time of filing of the suit in O.S.No.196 of 1986, he was represented by his Guardian, junior paternal uncle and subsequently, he has been cured of his mental illness. It is also contended by the defendants that the suit property has been purchased by the defendants 2 and 3, under registered sale deeds and the suit was therefore, sought to be dismissed.

4. The Trial Court finding that the plaintiff has not examined any of the witnesses to prove the settlement deed proceeded to dismiss the suit. The First Appellate Court also confirmed the findings of the Trial Court and dismissed the Appeal preferred by the appellant/plaintiff.

5. Aggrieved by the concurrent findings arrived at by the Courts below, the plaintiff has come up by way of the present Second Appeal. The above Second Appeal was not admitted. However, I have heard Mr.T.Murugamanicakam, learned Senior Counsel appearing for Mr.S.Kolandasamy, learned counsel for the appellant and Mr.N.Manokaran, learned counsel for the first respondent.

6. The learned Senior Counsel for the appellant would submit that the Courts below have committed a concurrent error in not noticing that the earlier suit in O.S. No.196 of 1986 was filed only after Ex.A1, settlement deed, came to be executed and without challenging the settlement deed, the suit filed for mere declaration of title of the plaintiff would not be adequate. Further, he would also refer to the findings of the Trial Court that the Trial Court has erroneously presumed that the settlement deed was set aside in the earlier proceedings in O.S. No.196 of 1986. He would also state that the original settlement deed has been marked by the plaintiff in Ex.A1 and when the execution of the said settlement deed has been admitted by the defendants and in view of the earlier decree, which was also only an exparte decree, not granting a decree setting aside the settlement deed, it was not necessary for the plaintiff to examine the attesting witnesses to prove the settlement deed, execution of which was admitted.

7. The learned Senior Counsel would further contend that the first defendant did not even choose to cross examine P.W.1 and therefore, the allegations in the plaint must be taken as proved, especially pertaining to the marriage between the plaintiff and the first defendant. He would also state that in terms of Section 103 of the Indi