BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 10.06.2024 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.No.1581 of 2000 and C.M.P.No.14828 of 2000

1.Abdul Lathif

2.Mohamed Gani (Died)

3.Asanathu

4.Zainambu (Died) 5.P.M.Abubackker

6.A.Kalafullah 7.A.Amardheen 8.A.Abudhaheer

9.S.Razhiyad Begum

10.A.Rahanathullah

11.A.Yoosuff

12.H.Mariam Beevi

13.M.Hassan Mohamed

14.M.Safiullah

15.M.Fakkrudeen

16.M.Shahul Hameed 17.M.Naina Mohamed

18.M.Amardeen

19.S.Ayesha Banu

20.A.Siddika Begum

21.M.Mumthaj Begum

22.M.Mohamed Umar Farook

23.M.Subhaitha Begum ... Appellants (Appellants 5 to 15 are brought on record as LRs of the deceased 4^th appellant vide order dated

30.08.2009 made in M.P.(MD)Nos.1 to 3/2009)

(Appellants 13 to 23 are brought as LRs of deceased 2^nd appellant vide Court order dated 09.02.2016 made in M.P.(MD)Nos.1 to 3 of 2013)

Vs

1.Sheik Mohamed (Died)

2.Abdul Gani 3.S.Sabber Ali

4.S.Sahul Hameed 5.Habitha Negam

6.Vahitha Begam ... Respondents (Respondents 3 to 6 are brought on record as LRs of the deceased first respondent vide Court order dated 17.08.2023 made in C.M.P.(MD)No.11818/2017)

PRAYER: Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 07.08.2000 made in A.S.No.223 of 1999 on the file of Subordinate Judge, Tiruchirapalli, reversing the judgment and decree dated 27.07.1995 made in O.S.No.94 of 1987 on the file of District Munsif, Manaparai.

For Appellants : Mr.P.Thiagarajan For Respondents : Mr.K.Govindarajan for R3, R5 & R6 No Appearance for R2 & R4 R1 Died.

JUDGMENT

The plaintiffs in the suit are the appellants. The suit is for declaration of title in respect of 'A' schedule property, permanent injunction and mandatory injunction in respect of the 'B' schedule property. The suit was decreed by the trial Court. The first appeal filed by the respondents was allowed and the suit was dismissed. Aggrieved by the same, the plaintiffs are before this Court.

2. According to the plaintiffs, the suit property originally belonged to Chinniya Rowthar @ Syed Mohamed Rowthar. The father of the plaintiffs Naina Mohamed purchased the suit property on 04.10.1908 under Ex.A1. From the date of purchase, the suit property has been in possession and enjoyment of the plaintiffs' father and after his death, the plaintiffs have been in possession and enjoyment. In the year 1987, the defendants encroached the portion of the suit property in the Southern portion. The entire property purchased by the plaintiffs' father was shown as 'A' schedule and the portion encroached by the defendants was shown as 'B' schedule.

3. The defendants resisted the suit by setting up title in themselves.

It was the case of the defendants that they purchased the suit property from one Rahamad Beevi under Ex.B1 dated 09.02.1965. The defendants claimed that they have been in possession and enjoyment of the suit property from the date of purchase openly and continuously and hence, claimed adverse title also.

4. Before the trial Court, the second plaintiff was examined as P.W.1 and one Ismail was examined as P.W.2. Three documents were marked on the side of the plaintiffs as Ex.A1 to Ex.A3. The first defendant was examined as D.W.1 and two other witnesses were examined on behalf of the defendants as D.W.2 and D.W.3. On behalf of the defendants, 9 documents were marked as Ex.B1 to B9. The plans and reports of the Advocate Commissioner were filed as EX.C1 to Ex.C4.

5. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs established their right over the suit property and hence, granted a decree for declaration, permanent injunction and mandatory injunction as prayed for. Aggrieved by the same, the defendants preferred an appeal in A.S.No.223 of 1999. The first appellate Court reversed the findings of the trial Court and allowed the appeal. Hence, the plaintiffs are before this Court.

6. At the time of admission, this Court formulated the following substantial question of law by an ord