Unchallenged documents prove title; appellate court cannot rely on stray admissions without disputing evidence.

JUDGMENT :

N. ANAND VENKATESH, J.

The second appeal has been filed against the judgment and decree dated 26.11.2002 in AS No.4/2002 on the file of the Additional Subordinate Judge, Tenkasi, reversing the judgment and decree dated 19.10.2001 passed in OS No.138/2000 on the file of the Additional District Munsif Court, Tenkasi.

2. The plaintiff is the appellant in the second appeal.

3. The case of the plaintiff is that Arunachala Nadar and his brother Ramasamy Nadar were originally owning schedule I of the suit property along with other properties. Gnanamuthu Nadar is the son of Ramasamy Nadar. He as the guardian of Gnanamuthu Nadar released his share through a registered document dated 06.06.1995 (Ex.A1). Thereafter, Gnanamuthu Nadar became the absolute owner of the I schedule of the suit property and he was in possession and enjoyment of the same and he was also issued patta in patta No.588. Thereafter Gnanamuthu Nadar along with his children in his individual capacity and in his capacity as the legal guardian sold schedule I of the suit property in favour of the plaintiff through a registered sale deed dated 11.07.1997 (Ex.A3) for a valuable consideration. Thereafter, the plaintiff was enjoying the 'A' schedule property as the absolute owner.

4. The grievance of the plaintiff is that 'B' schedule property is situated in the southern side of the 'A' schedule property and that the defendants are said to have constructed a wall and have put up an asbestos roof and had thus encroached upon the property belonging to the plaintiff. When they were questioned, they relied upon a Sale Deed dated 24.7.1985 said to have been executed by Nataraja Nadar in favour of the defendant. It is under these circumstances, the present suit came to be filed seeking for the relief of declaration of title with respect to 'A' schedule property and for a permanent injunction and for mandatory injunction and recovery of possession insofar as the 'B' schedule property is concerned, which according to the plaintiff, was the encroached portion.

5. The defendant filed a written statement and took a stand that the suit property was owned by Ramasamy Nadar and which had an extent of 22 cents. The defendant purchased the property from the said Ramasamy Nadar through a registered Sale Deed dated 24.07.1985 (Ex.B1) to an extent of 12 cents. The southern portion of the remaining extent of 12 cents was sold by Ramasamy Nadar in favour of one Arunachala Nadar and he was running a rice mill in that portion of the property. The further case of the defendant is that Arunachala Nadar was never the owner of the 'A' schedule property as is claimed by the plaintiff and therefore the property purchased by the plaintiff from Gnanamuthu Nadar does not confer any title on the plaintiff. Accordingly, the defendant had sought for dismissal of the suit.

6. The plaintiff examined PW1 and PW2 and marked Ex.A1 to Ex.A3. The defendant examined DW1 and marked Exs. B1 to B3.

7. The trial Court, on considering the facts and circumstances of the case and on appreciation of evidence, came to a conclusion that the plaintiff had established the title over the 'A' schedule property. However, insofar as the relief of mandatory injunction and possession is concerned, the trial Court held that the relief of permanent injunction cannot be granted since the plaintiff admits that the defendant is in the possession and enjoyment of the portion of the property and insofar as the relief of mandatory injunction is concerned, it was rejected on the ground that it is barred by limitation.

8. Aggrieved by the judgment of the trial Court, the defendant filed an appeal in AS. No 4/2002. The Appellate Court, on considering the facts and circumstances of the case and on appreciation of evidence and after considering the judgment and decree passed by the trial Court, came to the conclusion that the judgment of trial Court is liable to be interfered and accordingly the judgment and decree of the trial Court was set asi