Judgment :- This Second Appeal arises out of the judgment and decree dated 19. 2006 passed in A.S.No.3 of 2006 by the Principal Sub Judge, Myiladuthurai reversing the Judgment and Decree dated 19. 2005 passed in O.S.No.302/2004 by the District Munsif, Sirkali and thereby decreeing Plaintiffs suit for Permanent Injunction. Unsuccessful Defendant is the Appellant. 2. Suit property relates to a vacant Punjai land measuring about 5 cents in S.No.281/4B1 in Pudupattinam Village, Sirkali Taluk. The case of Respondent /Plaintiff is that the suit property measuring 5 cents was allotted to Plaintiffs father Muthusamy Thevar and his brothers. After the death of his father, Plaintiff has been in possession and enjoyment of the same. Suit property is described as ABCD in the plaint plan. Defendant is having property on the south of suit property and he is having brick kiln in his property and using the portion marked as EPGH in the plaint plan to take away the Bricks. Defendant demanded the Plaintiff to sell the suit property namely the portion marked as ABCD. Since, Plaintiff did not heed to his request, Defendant threatened to disturb Plaintiffs possession and hence Plaintiff filed the suit for permanent injunction restraining the Defendant or his men from illegally encroaching into the suit property and interfering with the peaceful possession and enjoyment of the Plaintiff in any manner. 3. Admitting that the suit property originally belonged to Plaintiffs grand father Neelamegam, Defendant filed written statement contending that Neelamegam had only one son by name Ponnian alias said Ponnusamy and the Ponnusamy inherited the suit property on the death of Neelamegam. According to Defendant his wife Kalyani purchased the suit property under Ex.B1-sale deed on 24.06.1993 from Ponnusamy and his son Veerapandian and therefore, Defendant and his wife are in possession and enjoyment of the suit property. It is averred that except Ponnusamy and his wife Kalyani, no one has got any right, title or interest in the suit property. It is further averred that the suit is bad for non-joinder of necessary party viz. Kalyani, wife of Defendant. 4. On the above pleadings, seven Issues were framed in the trial Court. Plaintiff examined himself as PW1 and one Gangamirdam was examined as PW2 and Shanmugam, brother of Plaintiff was examined as PW3. Exhibits A1 to A4 were marked on the side of Plaintiff. Kalyani, wife of Defendant. 4. On the above pleadings, seven Issues were framed in the trial Court. Plaintiff examined himself as PW1 and one Gangamirdam was examined as PW2 and Shanmugam, brother of Plaintiff was examined as PW3. Exhibits A1 to A4 were marked on the side of Plaintiff. Defendant himself examined as DW1 and one Kannaian and Kuppusamy were examined as DWs.2 and 3 respectively. On the side of Defendant, Ex.B1-sale deed was marked. 5. Upon consideration of oral and documentary evidence, trial Court held that Plaintiff failed to prove possession of the suit property on the date of filing of the suit and failed to adduce evidence as to the date and place of oral partition and how legal heirs of Muthusamy Thevar viz., Plaintiff and his brothers got the suit property. Trial Court also held that property was purchased under Ex.B1 sale deed [26. 1993] in the name of Defendants wife Kalyani and that suit is bad for non-joinder of necessary party and on those findings, dismissed Plaintiffs suit. 6. Aggrieved by the dismissal of suit, Plaintiff filed A.S.No.3/2006 before Principal Subordinate Judge, Myiladuthurai. In the lower Appellate Court, Application in I.A.No.65/2006 – Or.41,R.27 CPC was filed and allowed and Ex.A3-Adangal and Ex.A4-FMB sketch were marked. In the lower Appellate Court, Advocate-Commissioner was appointed and Advocate-Commissioners report and plan were marked as Exs.C1 to C3. Observing that each sons of Neelamegam would have got only 5 cents from the suit Survey No.281/4B1, lower Appellate Court held that Ponnusamy one of the son of Neelamegam could have had right only over 5 cents and that he could not have validly sold 10 cents under Ex.B1 sale deed. Lower Appellate Court further held that Ex.A3-Adangal would show joint possession of the Plaintiff and on those findings, reversed the Judgment of the trial Court and allowed the appeal and thereby decreed Plaintiffs suit. 7. Aggrieved by decreeing of suit, Defendant filed the Second Appeal. At the time of admission of Second Appeal, the following substantial questions of law were formulated for consideration:- 1. Whether the First Appellate Court erred in relying on Ex.B1 to give a finding that the respondent is in possession of the suit property? 2. Whether the non-joinder of the Appellants wife who is the owner of the suit property as per Ex.B1 is fatal to the suit? 3. Whether the First Appellate Court erred in relying on Ex.B1 to give a finding that the respondent is in possession of the suit property? 2. Whether the non-joinder of the Appellants wife who is the owner of the suit property as per Ex.B1 is fatal to the suit? 3. Whether Ex.A3 and A4, which are obtained after filing of the suit can be relied by the respondent for the purpose of proving his possession? 8. Mr.Jayabalan, learned counsel for the Appellant contended that suit being Permanent Injunction, Plaintiff has miserably failed to produce any legal admissible evidence relating to his possession of the suit property and the lower Appellate Court reversed the Judgment of trial Court only on surmises and conjectures without any proper evidence. It was further contended that in any event as son of Muthusamy Thevar and Plaintiff being one of the co-owner cannot obtain Permanent Injunction against the Defendant who purchased the property from Ponnaian under B1 sale deed. Learned counsel for the Appellant contended that Plaintiff was well aware that Defendants wife Kalyani has purchased the suit property and even then Defendants wife was not impleaded as party Defendant in the suit and trial Court rightly dismissed the suit for non-joinder of necessary party and lower Appellate Court erred in interfering with the findings of trial Court. 9. Taking me through the Judgment of the Courts below, Mr.Muthukumar, learned counsel for the Respondent-Plaintiff submitted that law presumes infavour of continuity of possession. Placing reliance upon AIR 1954 SC 355 [Nathoo Lal v. Durga Prasad] and 1971 (I) MLJ 190 [N.S.Kuppuswamy Odayar and another v. The Panchayat Narthangudi represented by its President Murugayyan and others], it was contended that Plaintiffs father being in possession, possession of Plaintiff must be presumed. It was further argued that Plaintiffs paternal uncle Ponnusamy could sell only 5 cents and there cannot be an alienation of 10 cents. Laying emphasis upon Ex.A1-UDR Patta and Ex.A3-Adangal, learned counsel for the Respondent submitted that Exs.A1 to A3 would establish Plaintiffs possession and lower Appellate Court was right in reversing the Judgment of the trial Court. 10. Parties are related as under:- Neelamega Thevar (died) | Muthusamy Velu Ponnaian @ Ranganathan Lakshmanan Rathinam |(died) Ponnusamy =Thayalnayagi (wife) | | Sold to | Kalyani, w/o. Defendant | 2 items each 5 cents | Ganapathy Dakshinamurthy Uthiradam Shanmugam Thiruvengadam (PW3) (Plaintiff) 11. 10. Parties are related as under:- Neelamega Thevar (died) | Muthusamy Velu Ponnaian @ Ranganathan Lakshmanan Rathinam |(died) Ponnusamy =Thayalnayagi (wife) | | Sold to | Kalyani, w/o. Defendant | 2 items each 5 cents | Ganapathy Dakshinamurthy Uthiradam Shanmugam Thiruvengadam (PW3) (Plaintiff) 11. Case of Plaintiff is that there was an oral partition between sons of Neelamega Thevar and in the said oral partition, plaintiffs father [Muthusamy Thevar] was allotted 5 cents in suit S.No.281/4B1. Further case of Plaintiff is that there was a partition between sons of Muthusamy Thevar viz., Ganapathy, Dakshinamurthy, Uthiradam, Shanmugam and Thiruvengadam and that Plaintiff Thiruvengadam was allotted the suit property S.No.281/4B1 – 5 cents. Plaintiff examined himself as PW1 and one Gangamirdam as PW2 and Plaintiffs own brother Shanmugam as PW3. As held by the trial Court, Plaintiff has not come out with a definite case as to when partition was effected amongst sons of Neelamega Thevar and thereafter partition amongst sons of Muthusamy Thevar. 12. Under Section 101 of Indian Evidence Act, party seeking for a decree has to adduce best attainable evidence. The burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Sec.102 of Indian Evidence Act embodies a test for ascertaining on which side the burden of proof lies. It means that when the burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. 13. The burden rests upon the party who would fail if no evidence at all, or no more evidence as the case may be, were adduced by either side. In other words, it rests, before any evidence whatever is given, upon the party who has been burden of proof on the pleadings, i.e. who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given if no further evidence was adduced by either side. 14. Plaintiff seeks decree for Permanent Injunction. Plaintiff has to adduce and establish as the factum and mode of partition and that Plaintiff has been in possession and enjoyment of the suit property. 14. Plaintiff seeks decree for Permanent Injunction. Plaintiff has to adduce and establish as the factum and mode of partition and that Plaintiff has been in possession and enjoyment of the suit property. As held by the trial Court, no cogent and consistent evidence was adduced by the Plaintiff to show when Partition was effected in the family of Neelamega Thevar and between sons of Muthusamy Thevar and how partition was effected. 15. In his evidence, PW1 has stated that after the death of his father Muthusamy and about 10 years prior to the filing of suit, partition was effected amongst sons of Muthusamy Thevar and that Plaintiff was allotted the suit property. Plaintiff has not produced any document to show his possession of the suit property. Ex.A1 is the UDR Patta issued in the joint names of sons of Neelamega Thevar and his daughter-in-law Thayalnayagi [wife of Rathinam] in 1986. But Plaintiff has not produced any kist receipt evidencing his possession. 16. To substantiate the plea of partition and allotment of suit property to Plaintiff, PW2-Gangamirdam and PW3-Shanmugam, brother of Plaintiff were examined. PWs.2 and 3 have also not stated as to when partition was effected between sons of Neelamega Thevar and thereafter between sons of Muthusamy Thevar. Even in the absence of cogent and consistent evidence as to partition of family properties, lower Appellate Court proceeded on the footing that in suit S.No.281/4B1 – 30 cents, each sons of Neelamega Thevar must have been allotted 5 cents each. Lower Appellate Court proceeded on the footing that each sons of Neelamega Thevar would have got 5 cents from out of 30 cents in suit S.No.481/4B. Lower Appellate Court also observed that it would be improbable that Ponnusamy @ Ponnian would have got 10 cents in suit S.No.481/4B. 17.As rightly pointed out by the learned counsel for the Appellant such finding of lower Appellate Court is not based on evidence, but merely on presumptions. Ofcourse, in their evidence PWs.1 to 3 have spoken about partition. But it is pertinent to note that family of Neelamega Thevar had properties not only in suit S.No.281/4B1; but also owned other properties. In his evidence, PW2Gangamirdam, brother of plaintiff has stated that family of Neelamega Thevar had 120 Kuzhies on the eastern side of suit property. In his evidence, PW3-Shanmugam has stated about one acre owned by the family of Neelamega Thevar. In his evidence, PW2Gangamirdam, brother of plaintiff has stated that family of Neelamega Thevar had 120 Kuzhies on the eastern side of suit property. In his evidence, PW3-Shanmugam has stated about one acre owned by the family of Neelamega Thevar. PW3 has also stated that he owned one Veli of land in Thandavankulam and the said land originally belonged to his paternal grand father Neelamega Thevar and in the family partition, PW3 got the property in Thandavankulam. Evidence of PW3 would go to show that family of Neelamega Thevar owned other items of properties apart from suit S.No.281/4B1. When family of Neelamega Thevar owned other item of properties, absolutely, there is no evidence to show that what are the items owned by the family and the total extent and how partition was effected amongst sons of Neelamega Thevar and thereafter amongst sons of Muthusamy Thevar. 18. As pointed out earlier, Ex.A1-UDR Patta was issued in the year 1986 jointly in the names of sons of Neelamega Thevar and daughter-in-law Thyalnayagi [wife of Rathinam]. In the trial Court, notice issued under UDR Scheme was marked as Ex.A2. In the trial Court, no other document was produced by the Plaintiff to prove his possession. Only in the lower Appellate Court, as per order in I.A.No.65/2006, Ex.A3-Adangal was produced which again stands in the joint names of sons of Neelamega Thevar and daughter-in-law Thyalnayagi [wife of Rathinam]. It is pertinent to note that Ex.A3 has been issued by the Village Administrative Officer, Pudupattinam and cross-signed by Headquarters Deputy Tahsildar. While admitting Ex.A3-Adangal as additional evidence, lower Appellate Court has not given opportunity to the Defendant to assail the correctness of Ex.A3-Adangal. Based upon Ex.A3-Adangal, it is not possible to conclude that Plaintiff is in possession of 5 cents of the property in suit S.No.281/4B1. 19. Under Ex.B1 sale deed dated 26. 1993, Ponnusamy son of Neelamega Thevar and Veerapandian, son of Ponnusamy have sold 10 cents in S.No.281/4B1 in two items [each 5 cents] to Kalyani, wife of Defendant. Defendant/DW1 has spoken about two items of properties [5 cents plus 5 cents] purchased by his wife under Ex.B1 sale deed from Ponnusamy and Veerapandian. 20. On the side of Defendant, DW2-Kannian, aged 65 years and DW3-Kuppusamy, aged 70 years were examined. Defendant/DW1 has spoken about two items of properties [5 cents plus 5 cents] purchased by his wife under Ex.B1 sale deed from Ponnusamy and Veerapandian. 20. On the side of Defendant, DW2-Kannian, aged 65 years and DW3-Kuppusamy, aged 70 years were examined. In his evidence, DW3-Kuppusamy has stated that excepting Ponnusamy, other sons of Neelamegam were allotted 15 Kuzhies each and Ponnusamy was allotted 30 Kuzhies. Evidence of DW2 is also to the effect that Ponnusamy was allotted 30 Kuzhies is also corroborated by oral evidence of DW3. 21. PW3-Shanmugam, brother of Plaintiff had admitted that they were aware that 10 cents was sold by Ponnusamy and his son to Defendants wife. When family of Plaintiff was aware of alienation of 10 cents under Ex.B1 sale deed [26. 1993], Plaintiff has not taken immediate steps to challenge the sale deed or taken steps for getting his right established. Even though, property sold under Ex.B1 sale deed to Defendants wife, Plaintiff has not chosen to file suit for declaration of his title; but remained content with filing of suit for bare injunction. Defendant claims ownership over the suit property and Coconut trees, Palmyrah trees standing in the suit property. In view of Ex.B1 sale deed and claim of ownership by Defendant, Plaintiff should have sought for declaration specifically stating that the land and trees belonged to him. 22. Ex.A3-Adangal standing in the joint names of sons of Neelamega Thevar viz., Muthusamy, Velu, Ponnaian, Ranganathan, Lakshmanan and Thayalnayagi, wife of Rathinam. Ex.A3-Adangal shows Coconut trees were raised in the suit property. In the written statement claiming ownership of suit property, Defendant has raised specific plea that he has raised 9 Coconut trees and 13 Palmyrah trees and two Odiah trees(xjpa kuk;). Advocate-Commissioner has also noticed number of Coconut trees and Palmyrah trees in the suit property. It is pertinent to note that Plaintiff has not stated anything about standing trees. House of Plaintiff is situated nearby on the eastern side, but Plaintiff has not explained in which Survey Number his house is situated and how he is entitled to the suit property. When Plaintiff comes to the Court for a decree of Permanent Injunction, it is for the Plaintiff to establish his right and title. Plaintiff cannot pick holes in the Defendants case. 23.This does not mean that when an appeal lies the appellate Court cannot reverse the finding of fact. When Plaintiff comes to the Court for a decree of Permanent Injunction, it is for the Plaintiff to establish his right and title. Plaintiff cannot pick holes in the Defendants case. 23.This does not mean that when an appeal lies the appellate Court cannot reverse the finding of fact. It is a rule of practice when there is conflict of oral evidence on any matter and the decision of the lower Court hinges upon the credibility of the witnesses unless there is something to indicate that a special feature has escaped the notice of the trial Judge the appellate Court should not interfere with the finding of the trial Judge. Observing that when the finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, in 2008(3) CTC 528 [Jagdish Singh v. Madhuri Devi], in the Supreme Court held as follows:- 25. ..... the Appellate Court is expected, nay bound, to bear in mind a finding recorded by the trial Court on oral evidence. It should not forget that the trial Court had an advantage and opportunity of seeing the demeanour of witnesses and therefore, trial Courts conclusions should not normally be disturbed. No doubt, the Appellate Court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial Court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. 24.In the above said decision, in Paragraph 33, Supreme Court has framed three requisites for the Appellate Court to reverse the finding of trial Court as follows:- 33. Three requisites should normally be present before an Appellate Court reverses a finding of the trial Court: .(i) It apply its mind to reasons given by the trial court; .(ii) It has no advantage of seeing and hearing the witnesses; and (iii)It records cogent and convincing reasons for disagreeing with the trial Court. Three requisites should normally be present before an Appellate Court reverses a finding of the trial Court: .(i) It apply its mind to reasons given by the trial court; .(ii) It has no advantage of seeing and hearing the witnesses; and (iii)It records cogent and convincing reasons for disagreeing with the trial Court. 25.When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trail Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court. 26. Upon analysis of oral and documentary evidence and facts and circumstances of the case, trial Court rightly held that Plaintiff has not proved his case. When DWs.2 and 3 have consistently stated that sons of Neelamega Thevar got 15 Kuzhies each and that Ponnusamy got 30 Kuzhies in S.No.281/4B1 and when the trial Court accepted the evidence of DWs.2 and 3, and when findings of trial Court is based upon oral evidence lower Appellate Court ought to have been slow in interfering with the finding of the trial Court. 27. While reversing findings of trial Court, Lower Appellate Court has not demonstrated how findings of trial Court is erroneous and unsustainable. Lower Appellate Court erred in proceeding on the presumptive footing that each sons of Neelamega Thevar must have got 5 cents in S.No.281/4B1. Lower Appellate Court did not keep in view the clinching evidence of PWs.2 and 3 that family of Neelamega Thevar had other lands and evidence is lacking as to mode of partition and allotment of properties. 28. It is well settled that in a suit for Permanent Injunction, primary question to be considered is one of possession on the date of filing of the suit. In his cross-examination PW1 has stated that tHf;F brhj;J vd; mDgtj;jpy; jhd; cs;sJ vd;gjw;F ,ju Mtz;fSk; jhf;fy; bra;aKoa[k;. But Plaintiff has not adduced convincing evidence to establish his possession on the date of filing of the suit. Trial Court rightly dismissed Plaintiffs suit. Without proper analysis of evidence, lower Appellate Court erred in interfering with the finding of the trial Court and the Judgment of the lower Appellate Court is to be set aside restoring Judgment of trial Court. 29. Trial Court rightly dismissed Plaintiffs suit. Without proper analysis of evidence, lower Appellate Court erred in interfering with the finding of the trial Court and the Judgment of the lower Appellate Court is to be set aside restoring Judgment of trial Court. 29. Inthe result, the Judgment of the lower Appellate Court in A.S.No.3/2006 dated 19.09.2006 on the file of Principal Subordinate Court, Myiladuthurai is set aside and the Second Appeal is allowed. Judgment of the trial Court in O.S.No.302/2004 dated 19. 2005 is restored and resultantly, the suit filed by the Respondent-Plaintiff shall stand dismissed. On the facts and in the circumstances of the case, the parties shall bear their own costs.