Judgment : Defendants 3 to 5 in a suit for declaration of title and delivery of possession have filed this Second Appeal challenging the judgment and decree dated 27.04.2006 in A.S. No. 47 of 2005 passed by the II Additional Subordinate Judge, Chengalpattu, wherein and by which the suit was decreed reversing the judgment and decree dated 27.10.2004 passed by the District Munsif, Alandur, in O.S. No. 2985 of 1997. 2. The case, in brief, of the plaintiff is that one Raghava Reddy, who was the original owner of 'A' Schedule cultivable land measuring an extent of 2.04 Acres, bequeathed the same to his daughters one Vijayalakshmi and Lokanayaki under his last Will dated 26.02.1914. It is stated that the plaintiff, being the only daughter of Vijayalakshmi, had inherited 50% of the interest in the 'A' Schedule properties while Lokanayaki had bequeathed her interest in 'A' Schedule to her under her Will dated 10.02.1975 and thus, the plaintiff became entitled to the entire 'A' Schedule property for which he was granted Ryotwari patta. Subsequently, the plaintiff had laid out 'A' Schedule property into plots in which the northern portion measuring two grounds was laid into a shopping plot which is described as 'C' Schedule. The first defendant owned lands to the west of 'C' Schedule which is described as 'B' Schedule. While so, defendants 3 to 5 issued notice dated 18.3.1985 claiming to have purchased the plots from the defendants 1 and 2 in 'C' Schedule property and also attempted to enter into 'C' Schedule property. According to the plaintiff, the property owned by the first defendant is situate in S.Nos. 268/1 and 268/2, ie., west of 'A' Schedule preperty and that she never owned the 'C' Schedule property which is comprised in S.No. 269/1. In such circumstance, the suit came to be filed seeking for declaration of title to the plaintiff to the 'C' Schedule property and for grant of injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of 'C' Schedule property, in the alternative, to grant a relief of vacant possession of 'C' Schedule property and for future mesne profits. 3. Resisting the suit, the second defendant filed written statement denying the allegations made by the plaintiff. 3. Resisting the suit, the second defendant filed written statement denying the allegations made by the plaintiff. According to him, he has been in possession and enjoyment of the 'A' Schedule as well as 'C' Schedule properties and subsequently, he sold 'C' Schedule property to defendants 3 to 5. It is contended that the plaintiff has no title to the 'C' Schedule property nor is in possession of the same and hence, the suit as framed for declaration and injunction is not sustainable. 4. The third defendant filed a separate written statement denying the averments made by the plaintiff. According to the third defendant, the first defendant was in absolute possession and enjoyment of the 'A' Schedule property and subsequently, sold a portion of the same to him and from then onwards, he has been in possession and enjoyment of the 'C' Schedule property. So saying, he sought for dismissal of the suit. 5. Reiterating the averments made in the written statement filed the third defendant, defendants 3 to 5 filed an additional written statement stating that though all the paimash numbers had been given corresponding survey numbers, the plaintiff has purposely failed to give the survey numbers and the extent of each survey number equivalent to the paimash number. 6. The sixth defendant also resisted the suit by filing a written statement stating that he has nothing to do with this case. 7. Before the trial Court, the plaintiff Hemantharaj examined himself as P.W.1 besides examining one Dulasitharan and Sivadass as P.W.2 and P.W.3 respectively and marked Exs. A.1 to A.34. On the side of the defendants, the defendants 2 and 3 examined themselves as D.Ws. 1 and 2 and Exs. B.1 to B.10 were marked. Exs. C.1 to C.6 were marked as Court documents. 8. The trial Court, after considering the pleadings, evidence and the issues elaborately, had declined the relief sought for by the plaintiff. As against the same, he preferred the appeal in A.S. No. 47 of 2005 and the Lower Appellate Court, on appreciation of the evidence and the materials available thereon, allowed the appeal reversing the decree of the trial Court thereby decreeing the suit. Feeling aggrieved, the defendants 3 to 5 are before this Court with the present Second Appeal. 9. As against the same, he preferred the appeal in A.S. No. 47 of 2005 and the Lower Appellate Court, on appreciation of the evidence and the materials available thereon, allowed the appeal reversing the decree of the trial Court thereby decreeing the suit. Feeling aggrieved, the defendants 3 to 5 are before this Court with the present Second Appeal. 9. The plaintiff has also challenged the judgment and decree passed by the Lower Appellate Court by filing Cross Objection No. 187 of 2011. Both the Second Appeal at the instance of the defendants 3 to 5 and the Cross Objection filed by the plaintiff were heard together and disposed of by this common judgment. 10. At the time of admission of the Second Appeal, the following substantial questions of law were formulated for consideration:- (i) Whether in law, has the lower appellate Court misconstrued Section 90 of the Evidence Act resulting in perverse findings? (ii) Whether in law, has not the lower appellate Court overlooked that proof of Will has to be in accordance with Section 63 of Succession Act read with Section 68 of the Evidence Act cannot dispense with the proof of Will or override Section 63 of Succession Act and Section 68 of the Evidence Act? (iii) Whether in law, is not the lower appellate Court wrong in receiving the additional document in the absence of compliance of Order 41 Rule 27, CPC? (iv) Whether in law, has not the lower appellate Court misread Order 26 Rule 10 CPC and also erred in relying on both Commissioner's report? (vi) Whether in law, has not the lower appellate Court overlooked that the plaintiff has miserably failed to identify the property by co-relation of pymash number with survey number? 11. Heard Mr. R. Subramanian, learned counsel appearing for the appellants / defendants 3 to 5 and Mr. T.V. Krishnamachari, learned Senior Counsel appearing for the respondent / plaintiff / cross objector and perused the records. 12. The dispute raised in this appeal is with regard to the title of the plaintiff with respect to 'C' schedule property situate in S.No. 269/1. Mutually, defendants 3 to 5 / appellants are claiming title to the same. T.V. Krishnamachari, learned Senior Counsel appearing for the respondent / plaintiff / cross objector and perused the records. 12. The dispute raised in this appeal is with regard to the title of the plaintiff with respect to 'C' schedule property situate in S.No. 269/1. Mutually, defendants 3 to 5 / appellants are claiming title to the same. From a perusal of the sketch attached to the plaint as well as from the Commissioner's report, it is found that the disputed property does not abut neither the plaintiff's property in S.No. 269/1 nor the defendants property in S. No. 268/1 and 268/2. Therefore, the ownership and title to the suit property áre to be decided in the appeal. The only admitted fact by the parties are that originally, the lands were Zamin properties. Therefore, the earlier documents produced by the parties bore only Paimash Numbers. According to the plaintiff, as per Ex.A.10 - Zamin patta, the property stood in the name of Raghava Reddiar. He executed Will Ex.A.2 whereunder he bequeathed "A' schedule properties in favour of his two daughters Vijayalakshmi and Lokanayaki equally. Based on Ex.A.2, Ex.A.11 dated 15.12.1934 patta was issued in favour of the sisters. Of the two, only Vijayalakshmi had a daughter Indiradeviammal, who was the first plaintiff in the suit. Since Lokanayaki had no issues, she executed Ex.A.33 Will dated 10.02.1965 in favour of Indira. On the death of Vijayalakshmi, by natural and inheritance and on the death of Lokanayaki, under Ex. A.33 Indira became the owner of the entire 'A' Schedule property. Thereafter, Indira desired to develop the property and applied for approval of lay out. Ex.A.9 is the approved lay out in Paimash Nos. 405/1, 436/1, 437/3, 438/2 and 439/3, which was granted in furtherance to the proceedings in Ex.A.17 dated 28.10.1975 by the Alandur Municipality. The defendants 1 and 2 also laid out the property. Both the sanctioned lay outs of the plaintiff and defendants were before assignment of Survey Numbers. Hence, they were referred only by Paimash Numbers. The parties have filed Ex. A.32 = B.10 which is the SLR for correlation of Paimash Numbers to Survey Numbers. It is also clear from the materials that for Paimash Nos. 436 to 439, which belongs to the plaintiff, S. No. 269/1 is assigned. Pursuant to the same, the first plaintiff was also issued patta under Ex. A.13 for S. No. 269/1. A.32 = B.10 which is the SLR for correlation of Paimash Numbers to Survey Numbers. It is also clear from the materials that for Paimash Nos. 436 to 439, which belongs to the plaintiff, S. No. 269/1 is assigned. Pursuant to the same, the first plaintiff was also issued patta under Ex. A.13 for S. No. 269/1. As condition to approve lay out, the first plaintiff was required to surrender the portions meant for road and it is evident from Exs. A.14 and A.15 that she has also paid a sum of Rs.1350/- to the Municipality for lighting the roads. The formal gift deed in favour of the Municipality also was executed on 09.4.1981 under Ex. A.16. The first plaintiff also had executed a Will in favour of the second plaintiff on 02.12.1984 bequeathing all her rights in S. No. 269/1. 13. Learned counsel appearing for the appellants / defendants 3 to 5 contended that S. No. 269/1 belonged to the first defendant. There are four Wills based on which the plaintiff claims title to the property. 14. Insofar as Ex.A.2 Will dated 26.02.1914 is concerned, it is seen that the same was executed by Raghava Reddiar in favour of his two daughters subject to life estate in favour of his wife Amirthammal. The defendants objected for marking only the registration copy of the same and that the Will is not proved in accordance with law. However, the plaintiff had produced the original before the Lower Appellate Court which is marked as Ex. A.35 dated 26.02.1914. P.W.1 has stated that all the three witnesses to Exs. A.2 = A.35 are dead. Hence, the Lower Appellate Court on the strength of Section 90 of the Evidence Act held that the Will executed by Raghava Reddiar is true and genuine. Besides, it can be seen that the Will is of the year 1914 and P.W.1, the great grand son of the testator, is endeavouring to prove the same after almost nine decades. The defendants / appellants also could not prove the contrary. 15. The second Will is dated 10.02.1965 marked as Ex. A.33 executed by Lokanayaki in favour of the first plaintiff Indira. Here again, the attestors, viz., P.W.1's father and one Chakrapani are said to be dead. P.W.1, being the son of one of the attestor, has identified the signature of his father. 15. The second Will is dated 10.02.1965 marked as Ex. A.33 executed by Lokanayaki in favour of the first plaintiff Indira. Here again, the attestors, viz., P.W.1's father and one Chakrapani are said to be dead. P.W.1, being the son of one of the attestor, has identified the signature of his father. Thus, the Lower Appellate Court has held that both the Wills are proved in the manner known to law. Though the defendants / appellants have raised objections, they could also not bring any rebuttal evidence. Exs. A.10 and A.11 are pattas issued in favour of Raghava Reddiar. 16. Therefore, from the above documents, it can be seen that after the death of Raghava Reddiar, Vijayalakshmi and Lokanayaki acquired title to the suit property in Paimash Nos. 405, 436, 437, 438 and 439. Learned counsel for the appellants vehemently contended that S.No. 269/1 belonged to the defendants and the plaintiffs had no right in the same. In this regard, it is relevant to extract the finding of the Lower Appellate Court which is the final Court of fact. The relevant passage reads as under:- “.... Even though it is contended by them that the first defendant is the owner of Sy. No. 269/1, yet it is established even by the very pleading of the second defendant that the claim is made on the basis of a wrong correlation. According to him, first defendant is entitled to property in paimash No. 66 only, which she has obtained under Ex.B.1 settlement deed dated 14.5.1962. Ex.B.1 refers to only paimash No. 66. But the self defeating exercise of the defendants commence here when they not only did not challenge the correctness of Ext. A.32 S.L.R. but also produces a copy thereof themselves as Ext.B.7. Sy. No. 269/1 is not seen correlated to paimash No. 66. First defendant too had divided her property in paimash No. 66 into layout and the same is Ext.A.B. Ext.A.8 is appended to Ext. A.7 sale deed executed by the first and second defendants in favour of one stranger Nathan. They also refers to first defendant's property only in terms of paimash No. 66. Plaintiff's case in the plaint is that first defendant's property is correlated to Sy. No. 268/1 and 2. This is the second defendant has admitted in his chief examination itself as D.W.1. They also refers to first defendant's property only in terms of paimash No. 66. Plaintiff's case in the plaint is that first defendant's property is correlated to Sy. No. 268/1 and 2. This is the second defendant has admitted in his chief examination itself as D.W.1. It would be thus evident first defendant has no right or title to Sy. No. 269/1 and that the plaintiff alone is the title holder of property in Sy. No. 269/1.” 17. When the defendants specifically allege that prior to assignment of Survey Number, they owned property in Paimash No. 66, it is the duty of the defendants to correlate paimash No. 66 to S.No. 269/1. From the above finding of the Lower Appellate Court, it can be seen that the defendants had failed in their attempt whereas the plaintiffs have established that S.No. 269/1 belonged to them. In fact, the appellants / defendants have not even specifically challenged the said findings in the memorandum of grounds. 18. The defendants / appellants attacked the Wills Exs. A.2 and A.33 on the ground that they have not been proved in accordance with law. In this regard, reliance was placed on the decision of the Hon'ble Apex Court in Bharpur Singh and others vs. Shamsher Singh [ 2009 (3) SCC 687 ] wherein in paragraphs 14 and 15, it has been observed as follows:- “14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma opined that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. 15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma opined that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. It was also held that: (AIR p. 451, para 19) one of the important features which distinguishes a will from other documents is that the will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.” 19. As stated earlier, it is not disputed by the parties that the properties were originally Zamin properties and the pattas were issued to the occupants based on the assignment after the Estate Abolition Act. Thus Raghava Reddiar got the Zamin patta dated 27.6.1914 in his favour and became owner of the property. Assuming for a moment, there are no Wills produced in this case, the plaintiffs would have got the property by natural inheritance. There is no unnatural bequest made in any of these Wills. No doubt, that did not mean that the Wills can go without proof in a manner known to law. However, in the absence of any rebuttal evidence from the defendants / appellants and no allegation of execution of the Will by suspicious circumstance or fraud is made, the finding of the Lower Appellate Court, in my considered view, does not warrant any interference. 20. Insofar as the the identity of the property is concerned, the plaintiff has established that it is part of 'A' Schedule property in S.No. 269/1 on which the defendants have no right or title. The appellants are purchasers from the defendants 1 and 2. The grounds raised by the appellants is that the Lower Appellate Court erred in considering the reports of the Commissioner. The report and sketch by the second Commissioners are marked as Exs. C.3 to C.6 respectively. The Commissioner had also correlated the S.No. 269/1 to T.S. No. F.18/237. The defendants have not mentioned in their written statement about the Paimash Number and the correlating Survey Number. The report and sketch by the second Commissioners are marked as Exs. C.3 to C.6 respectively. The Commissioner had also correlated the S.No. 269/1 to T.S. No. F.18/237. The defendants have not mentioned in their written statement about the Paimash Number and the correlating Survey Number. It is also not pleaded that a portion of Paimash No. 66 is part of S.No. 269/1. In order to prove title to the property, the appellants relied on the settlement deed in favour of the first defendant marked as Ex.B.1. As the executant to the document is not examined, the boundary description cannot be said to be proved. As the plaintiff is not a party to the same, it is also not binding on him. Unless the interpretation of a document involves the question of application of a principle of law, the evidentiary value of the same only raises a question of fact. 21. Learned counsel for the appellants submitted that the finding of the Lower Appellate Court regarding the identity of the property is incorrect. The relevant passage found in paragraph 35 of the finding of the Lower Appellate Court reads as follows:- ..... First, the property has an irregular shape, more so in the north. The boundary description given in the plaint relates to 'A' schedule property and not to the disputed property. When plaint description of 'A' schedule property is seen in the light of C.4, there is no such error in description....” 22. Further, though according to the appellants, the plaintiff had 11 Cents in excess, whether it is open to him to agitate the same when his vendors have categorically admitted their ownership only in S.Nos. 268/1 and 268/2. As found earlier, Paimash No. 66 is not correlated to S. No. 269/1. More over, when the patta was issued based on possession and the same having become final, it is not open to the appellants to challenge the same now. Besides, the third defendant Venkatesan, who had deposed as D.W.2, had categorically admitted that he did not verify the patta standing in the name of the second defendant before purchase. The appellants / Defendants 3 to 5, having not established their title to the 'C' Schedule property, are not entitled to succeed. 23. In substance, in any Civil case, the preponderance of probabilities of the facts and circumstances leads to the conclusion. The appellants / Defendants 3 to 5, having not established their title to the 'C' Schedule property, are not entitled to succeed. 23. In substance, in any Civil case, the preponderance of probabilities of the facts and circumstances leads to the conclusion. In my opinion, the Lower Appellate Court has clearly recorded a finding on the claim of title to the suit property made on behalf of the plaintiff. As the plaintiff has established his right, title and possession to the suit properties and since the Lower Appellate Court, being the final fact finding authority, has held in favour of the plaintiff based on material records, and this being a Second Appeal filed under Sec.100, C.P.C., no question of law, much less substantial question of law, would arise for consideration. There are no error of jurisdiction or law or perversity on the face of the records. Cross Objection No. 187 of 2011:- 24. The plaintiff has filed Cross Objection claiming mesne profits at Rs.10/- per day from 24.11.1988. 25. Learned Senior Counsel appearing for the cross objector submitted that having decreed delivery of vacant possession finding that the plaintiff has title to the suit 'C' Schedule property, the Lower Appellate Court, as a matter of course, ought to have decreed the claim for mesne profits. He further submitted that since the plaintiff has been illegally dispossessed of his valuable vacant site, he is entitled to compensation and mesne profits and the Lower Appellate Court, according to the learned Senior Counsel, has erred in not considering the same. 26. The submission of the learned Senior Counsel for the plaintiff / Cross Objector though looks attractive at the first instance, it is only to be rejected. Though the plaintiff is declared as having title to the suit 'C' Schedule property, indisputably, it is admitted that the said suit property is only a vacant site. Therefore, it is not capable of yielding any income. He has also not produced any evidence contra to the same. As such, in the absence of any substantial evidence, the question of mesne profits claimed by the plaintiff does not arise. In view of the same, I find no merits in the Cross Objection preferred by the plaintiff. Therefore, it is not capable of yielding any income. He has also not produced any evidence contra to the same. As such, in the absence of any substantial evidence, the question of mesne profits claimed by the plaintiff does not arise. In view of the same, I find no merits in the Cross Objection preferred by the plaintiff. Result:- In view of the foregoing discussions, I have no hesitation to hold that no interference is warranted to the well-considered and well-merited judgment of the learned II Additional Subordinate Judge, Chengalpattu. As such, the Second Appeal fails and the same stands dismissed confirming the judgment and decree dated 27.04.2006 in A.S. No. 47 of 2005 passed by the Lower Appellate Court. However, considering the circumstances of the case, the parties are directed to bear their own costs. Cross Objection No. 187 of 2011 also stands dismissed as it is devoid of merits.