When parties have led evidence, the burden of proof becomes secondary to a holistic appreciation of evidence; furthermore, additional evidence under Order 41 Rule 27 cannot be allowed at the appellate stage in the absence of foundational pleadings.

JUDGMENT

(1)The second appeal is filed against the judgment and decree in A.S.No.168 of 2005, dated 25.09.2006. on the file of the learned Principal Sub Judge, Tenkasi, reversing the judgment and decree dated 18.01.2005, passed by the learned Additional District Munsif, Tenkasi, made in O.S.No.355/2003.

(2)For the sake of convenience, the parties are referred to, as per their ranking before the Trial Court.

Facts in brief:-

(3)The plaintiffs case is that the suit property originally belonged to one Mohideen Pillai Dharaganar and that it was purchased from him under a registered Sale Deed on 30.04.1947, by Madasamy S/o.Oorkavalakudumban, Oorkavalan Kudumban S/o Muthuveeran Kudumban, Oorkavalakudumban S/o.Veeraiya Perumal. The 2^nd plaintiff is the daughter of Oorkavalakudumban S/o.Muthuveeran Kudumban who was one of the purchasers in the aforesaid Sale Deed. According to the plaintiffs, the property was orally partitioned among the aforesaid persons, and Masilamani and his two brothers Velu and Susai. The plaintiffs contended that Masilamani and his two brothers were not included in the Sale Deed since they had gone to Kerala at the time. However, in the oral partition, they were included in which the Northern most portion of the suit 1^st item property was allotted to Oorkavalan Kudumban, S/o.Veeraiya Perumal, the portion to the south of the said property was allotted to the father of the 2^nd plaintiff and shown as suit 2^nd item property, the portion to the south of the suit 2^nd item property was allotted to Masilamani and his two brothers and shown as suit 3^rd item property and since Masilamani and his brothers were residing in Kerala, the plaintiffs claimed to be in enjoyment of the property. The property to the south of the suit 3^rd item, was allotted to Madasamy and the western portion was purchased by the 1^st plaintiff on 01.03.2001 and the same was shown as suit 4^th item. On the basis of the registered Sale Deed dated 30.04.1947 and the subsequent oral partition, the plaintiffs claimed title to the suit property. The plaintiffs contended that the property purchased by the defendant was not connected to the suit property and therefore, the defendant had no right, title or interest in the suit property. Since the defendant interfered with the plaintiffs’ possession, the plaintiffs filed the suit for declaration and permanent injunction.

(4)The defendant denied the existence of the plaint schedule property on ground. The defendant denied the Sale Deed dated 30.04.1947 and the subsequent oral partition pleaded by the plaintiffs. The defendant contended that the property purchased by the defendant and the plaint schedule property were different. The defendant further contended that the 1^st schedule item in the written statement originally belonged to one Subbiah Naicker and from him, the defendant purchased the same on 10.02.1984. The defendant contended that since there were discrepancies in the north-south and east-west measurements of the properties, the defendant and her neighbours clubbed their entire properties and orally divided the same as per their shares. In the said oral division, the defendant was allotted the 2^nd item property mentioned in her written statement. The defendant contended that the plaintiffs had no right over the plaint 2^nd and 3^rd items and the property claimed by the plaintiffs did not exist on ground. The defendant therefore, prayed for the dismissal of the suit.

(5)Before the Trial Court, the plaintiffs examined two witnesses and marked six