JUDGMENT : 1. This second appeal is directed against the judgment and decree of the Sub-Judge, Kuzhithurai, dated 13.03.2015 made in A.S. No. 128 of 2014, reversing the judgment and decree of the II Additional District Munsif, Kuzhithurai, in O.S. No. 70 of 1998 dated 07.10.2014. 2. The Plaintiff in O.S. No. 70 of 1998 on the file of II Additional District Munsif, Kuzhithurai is the appellant herein, the respondents herein are the defendants. The Appellant filed the suit for recovery of possession of the Plaint schedule property. 3. The brief facts in the plaint is as follows : The Plaintiff is the absolute owner of the plaint schedule property which has an extent of 1 Acre 40 Cents comprising 50 cents in Survey No.1631/2 and 90 Cents in Survey No. 1594/2 of Ezhudesom Village. The plaintiff purchased the property from his previous owner Haji Mohammad Meeran as per Sale Deed dated 21.07.1977 registered as Document No.1507 of 1977 of the Kollencode Sub-Registrar’s Office. The plaintiff’s Vendor was entitled to the Plaint schedule property as per sale deeds in Document Nos. 1833 of 1966, 1429 of 1968, as per Release Deed Document No.4909 of 1966 of Kollencode Sub Registrar’s Office and as per the decree passed in O.S. No. 51 of 1966, on the file of the Sub Court, Padmanabapuram. Plaintiff vendor was the third defendant in the said suit. Plaintiff’s vendor had been in absolute possession and enjoyment of plaint schedule property and the coconut trees standing thereon upto the date of absolute possession and enjoyment of the plaint schedule property since the date of sale in her favour. The patta for the plaint schedule property is in the name of plaintiff. The tax for the plaint schedule property is being paid by the plaintiff. The property having an extent of 90 Cents on the South Eastern side of the plaint schedule property was purchased by one Miss Lilly Thomas from Haji Mohammed Meeran. The said Lilly Thomas is a friend of plaintiff. The plaintiff had constructed compound walls around the plaint schedule property and the property purchased by Lilly Thomas. The said Lilly Thomas had contributed her share for the construction of the compound wall. The plaintiff had planted coconut trees in the plaint schedule property and the trees are yielding. Lilly Thomas has planted coconut trees in her property. The plaintiff had constructed compound walls around the plaint schedule property and the property purchased by Lilly Thomas. The said Lilly Thomas had contributed her share for the construction of the compound wall. The plaintiff had planted coconut trees in the plaint schedule property and the trees are yielding. Lilly Thomas has planted coconut trees in her property. The plaintiff had been taking the yield from the property. The first defendant’s husband and father of the other defendants Marianayagam is the 12th defendant in the aforesaid suit, O.S. No. 51 of 1986. Marianayagam had no manner of right interest or possession over the plaint schedule property. He was not entitled to any portion of the plaint schedule property as per the decree passed in O.S. No. 51 of 1996. The said Maria Nayagam tried to trespass into plaint schedule property and tried to create some evidence about his occupation. Plaintiff had given complaints to Police several times about the illegal attempts of the said Mariyanayagam for trespassing into the plaint schedule property. On 03.10.1987, Marianayagam had trespassed into the plaint schedule property with lot of men and unauthorisedly encroached into the plaint schedule property. The plaintiff gave complaint to the Police. The Police hesitated to evict Marianayagam, since he was a very influential person. The plaintiff being a lady, could not resist Marianayagam had absolutely, no right title or possession in the plaint schedule property. So, the plaintiff filed a suit in O.S. No. 717 of 1987 before District Munsif Court, Kuzhithurai for recovery of possession of the plaint schedule property from Marianayagam. In the meantime, the said Marianayagam died on 29.10.1990. So, the plaintiff filed an application in I.A. No. 855 of 1991 to implead the defendants who are the legal representatives of Marianayagam as additional defendants 2 to 6. The plaintiff also filed an application before the Court to set aside the abatement order as I.A. No. 857 of 1991. Since the proposed additional 2 to 6th defendants of O.S. No. 717 of 1987, who are the present defendants, also attempted to encroach the plaint schedule property, the plaintiff filed an application as I.A. No. 854 of 1991 before the Court for an interim injunction restraining them from encroaching the plaint schedule property along with a commission application as I.A. No. 860 of 1991. On 13.11.1996, the Court has dismissed all the said interlocutory applications and had dismissed the suit also. This Court has disposed the revision application by holding that the dismissal of the revision petition will not stand in the way of the plaintiff filing a fresh suit on the same cause of action. 4. The respondent filed Written Statement and the brief averments are as follows : The suit as laid is not maintainable in law or in facts. The sale deed relied on by the plaintiff is not valid. The said document dated 21.07.1977 is fraudulent and collusive. He had also no possession over the plaint schedule property. Accordingly, the plaintiff also did not get any right possession basing on that impugned sale deed dated 21.07.1977. The suit survey number property is an extensive areas. How the plaintiff’s vendor got the suit property is not explained in the suit. The plaintiff has not constructed any compound wall in the suit property. The husband of the first defendant and father of defendants 2 to 5 of the plaint has constructed the compound wall with his own funds. Plaintiff has no possession and hence, she has no opportunity to construct any compound wall or plant any coconut tree in the suit property. The allegation that the compound wall was constructed by the plaintiff along with another person is false and frivolous. The suit in O.S.No.51 of 1996 is admitted. The plaintiff’s vendor was the third defendant in that suit. The first defendant’s husband and the father of the defendants 2 to 5 was impleaded as 12th defendant in that suit. A Commissioner has been deputed in that suit and he demarcated the plots of the defendants as per their present possession and enjoyment. The plaintiff cannot dispute the true fact. The door numbers of those buildings are D.No.1/77E and 1/77F of Ezhudesom Town Panchayat. Those two buildings are electrified and the defendant is paying electricity charges. There is a well and pump set inside the house compound of the defendant. There is a compound wall also on all the four sides of the house plot. The allegation that the defendant attempted to trespass into the suit property on several occasions and finally trespassed into the suit property on 03.10.1987. There is a well and pump set inside the house compound of the defendant. There is a compound wall also on all the four sides of the house plot. The allegation that the defendant attempted to trespass into the suit property on several occasions and finally trespassed into the suit property on 03.10.1987. The defendant is in lawful possession of the suit property and hence, no question of the defendant trespassing into the suit property arises in this suit. The plaintiff has absolutely no title or possession in the suit property. Hence, the Plaintiff is not entitled to pray for any recovery of possession of the suit property in this suit. This suit is barred by res-judicata by reason of the Decree and Judgment and the supplementary preliminary decree in O.S.No.51 of 1966 of Padmanabapuram Sub-Court. The plaintiff is also bound by the decree in the said suit in O.S. No. 51 of 1996. The contentions of the plaintiff is barred by estoppels. This suit is not at all supported by least of bonafide. This suit is filed simply to harass this defendant. The plaintiff has no cause of action to file this suit. Even assuming that the plaintiff or her predecessors in interest had any nominal right in the remote past in respect of any portion in the suit property, all such rights were lost to them by long, continuous and hostile possession of this defendant at least from the year 1971 onwards. Ouster and adverse possession is also bar in the suit. The suit is filed by suppression of material and real facts. 5. During trial, on the side of the appellant, three witnesses were examined and 34 documents were marked. On the side of defendants, 2 witnesses were examined and 15 documents were marked. The Trial Court, on 07.10.2014, decreed the suit with cost and held that the plaintiff is entitled for recovery of the suit property from the custody of the defendant and the defendants were directed to deliver possession within two months. Against, the said Judgment and Decree, the defendants preferred an appeal in A.S. No. 128 of 2014 before the Sub-Judge, Kuzhithurai. On 19.03.2015, the said appeal was allowed and the Decree and Judgment of the Trial Court was set aside. Against the said Judgment and Decree, the present Second Appeal is filed by the Appellant. 6. Against, the said Judgment and Decree, the defendants preferred an appeal in A.S. No. 128 of 2014 before the Sub-Judge, Kuzhithurai. On 19.03.2015, the said appeal was allowed and the Decree and Judgment of the Trial Court was set aside. Against the said Judgment and Decree, the present Second Appeal is filed by the Appellant. 6. The substantial questions of law raised in the Second Appeal are as follows: A. Whether the 1st Appellate Court is wrong without considering the Doctrine preponderance and prohibition in favour of plaintiff even though she process title and original enjoyment rather than the defendant ? B. Whether the 1st Appellate Court has erred in reversing the Decree and Judgment of Trial Court without analyzing the material fact that “Mariyanayagam” father, of Defendants 2 to 5 obtained no specific plot in the earlier final decree in O.S.No.51 of 1966 exhibited as Exhibit A-23 ? C. Whether the 1st Appellate Court is erred in not considering the aspect of Transfer of property right under Section 8 of T.P. Act infavour of Plaintiff as per Exhibits A-5 to A-7 ? D. Whether the 1st Appellate Court is wrong in deciding the issue without analyzing the material document Ex.A-4, A5 to A7, A23 to A24 before deciding the Issue. 7. The learned counsel for appellant submitted that the Vendor of Plaintiff, namely, the 3rd defendant in O.S. No. 51 of 1966 had obtained his share as per Ex.A-23 and have alienated one acres 40 cents in his favour as per registered Document No.1507/77 of Kollamkode Sub-Registrar Office, dated 21.07.1977. Since the original document was misplaced by the plaintiff, a photoset copy of the same was exhibited as Ex.A-5. The certified copy was marked as Ex.A-6 and the Tamil translation was marked as Ex.A-7. The title of the plaintiff's Vendor was proved through Ex.A-17, namely, a certificate issued from the Sub Registrar Office stating that the sale deed document No.1833 of 1966 could not be produced since damaged, Ex.A-20 and its Tamil version Ex. A-21 is the release deed and Ex.A18 and its Tamil version Ex.A-19 are the certified copy of the sale deed. The Judgment and Decree in favour of the plaintiff’s vendor in O.S. No. 51 of 1966 which has been exhibited as A-23 proves the right of plaintiff’s vendors Mohammed Meeran Moideen. A-21 is the release deed and Ex.A18 and its Tamil version Ex.A-19 are the certified copy of the sale deed. The Judgment and Decree in favour of the plaintiff’s vendor in O.S. No. 51 of 1966 which has been exhibited as A-23 proves the right of plaintiff’s vendors Mohammed Meeran Moideen. So, as per Section 8 of the T.P. Act, since there is no other intention expressly or impliedly found in the Sale Deed. He further submitted that the possession of the property was given to the plaintiff from the date of sale deed without encumbrance and it is a legal presumption in plaintiff favour that he obtained property from his Vendor from the date of sale deed in 50 cents in Survey No.1631/2 and 90 Cents in Survey No.1594/2. He has further submitted that the plaintiff had purchased property after payment of sale consideration and the version of the defendant that “Plaintiff’s vendor Meeran Mydeen sold his property to several persons and he was having no right for executing sale deed infavour of the Plaintiff”, is of no meaning and without evidence because the defendant has not proved such statement to non suit the plaintiff as per Section 92 of Evidence Act. Therefore, without any evidence, the mere pleadings of the defendant would fetch no value before law. He has further submitted that ever since the plaintiff obtained the sale deed, she became the absolute owner. In re-survey, the property comes in Re-Survey No.295/1B and 4A, 5B and 296 aA1A1A. Plaintiff has got joint patta Ex.A-8 for Re-Survey No.295/1B and 4A, 5B in which she is 6th named person. Her another joint patta is Ex.A22 for Re-survey No.296/1A1A1A, in which, her name is in 158, Ex.A1 to A3 and Ex.A9 to A13 are her land tax receipts. So far as boundary descriptions of plaintiffs Ex.A5 to A7 sale deed is concerned; West – Road; East – Meeran Mohideen’s property; North - Meeran Mohideen’s property and South – Lilly Thomas’s property. The southern boundary as Lilly Thomas’s property is established by the boundary descriptions in Lilly Thomas’s sale deed Ex.A-33 and A-34. Meeran Mohideen sold his northern portion to one Thanislas under Exs.B-31 and B-32 sale deed on 30.11.1978. Then Thanislas sold that property to one Kleetus under Ex.A-30 sale deed dated 22.02.1999. This fact is also proved by the plaintiff by examining Thanislas as PW-3. Meeran Mohideen sold his northern portion to one Thanislas under Exs.B-31 and B-32 sale deed on 30.11.1978. Then Thanislas sold that property to one Kleetus under Ex.A-30 sale deed dated 22.02.1999. This fact is also proved by the plaintiff by examining Thanislas as PW-3. Kleetus put up house in the northern portion after his purchase under Ex.A-30 sale deed. This fact is also proved by the plaintiff by cross examining the defendant’s witness DW-2 who admitted this fact. The plaintiff produced the sale deed of Lilly Thomas as Exs.A-33 and A-34 to establish and substantiate the boundary description in both plaintiff’s sale deed and Lilly Thomas’s sale deed enabling the Court to hold that the plaintiff’s case is true. 8. The learned counsel for respondent would submit that the defendants have raised the plea of res-judicate contending that the plaintiff had already filed a suit in O.S. No. 717 of 1987 for the same prayer sought for in the present suit and the said suit was abated since the original defendant Mariyanayagam who is the husband of the first defendant and father of the defendants 2 to 5 in this suit died during the pendency of that suit. But the plaintiff had not taken any steps in time before the suit was abated. However, very belatedly, he filed the petitions with condonation of delay in the year 1991. All those petitions were dismissed by the Lower Court. Against which, the plaintiff filed Ex.A-4, C.R.P. against the defendants 1 to 5 and the same were dismissed against the plaintiff. It is further argued that one Lilly Thomas filed O.S. No. 718 of 1987 against the Mariyanayagam and the said suit was decreed by the Lower Court and the Decree and Judgment was set aside as per Ex.B-4 appeal. Against which, the said Lilly Thomas has not preferred any appeal so far and it has become final. 9. Learned counsel for the respondents further submitted that when the suit in O.S. No. 51 of 1966 was pending, the vendor of the plaintiff and the Lilly Thomas namely Mohammed Meeran Myheen alienated the property to the third parties. So an order of injunction was passed against him not to alienate the suit property under Ex.B-15. When the order was in force, the Plaintiff and the Lilly Thomas purchased the properties in their names. So an order of injunction was passed against him not to alienate the suit property under Ex.B-15. When the order was in force, the Plaintiff and the Lilly Thomas purchased the properties in their names. So, the sale deeds obtained by the plaintiff and the Lilly Thomas are invalid in the eye of law. Mariyanayagam had impleaded himself as the 12th defendant during the final decree proceedings in O.S.No.51 of 1966 and obtained second preliminary decree in his favour and his due share of 1/24 was allotted under the final decree. Based on the final decree, he filed Ex.B-3 execution proceedings and the Execution Petition was allowed in favour of Mariyanayagam and he had taken delivery of the suit property. To prove the same, the defendants have filed Ex.B-9 delivery list in E.P. No. 67 of 1988 in O.S. No. 51 of 1966. In the said final decree proceeding and the execution proceedings, the plaintiff's vendor and their legal heirs were parties to the entire proceeding. Therefore, on the aforesaid grounds, the suit is hit under resudicata. 10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and I have given anxious consideration to the arguments advanced on either side. 11. As per Order 20 Rule 18, a preliminary decree was passed in O.S. No. 51 of 1966 answering in respect of the rights of the parties over the plaint schedule properties. The father of Mariyanayagam purchased 10 acres from the daughter of 2nd defendant and so impleaded as the 2nd defendant in the proceedings and obtained supplementary preliminary decree and in the final decree proceedings, to settle the issues, finally, a Commissioner was appointed, who visited the property, bifurcated the property and filed his report before the competent Court wherein paragraph No.7b reads as follows: “The 12th defendant has purchased only 10 acres. Allotting this portion in Item I will be prejudicial to other parties as he has purchased only from a 2/24th sharer. So the 12th defendant is allotted his 10 acres in Sy.No.22499/2B and shown in green ink the plan prepared and produced herewith.” 12. Allotting this portion in Item I will be prejudicial to other parties as he has purchased only from a 2/24th sharer. So the 12th defendant is allotted his 10 acres in Sy.No.22499/2B and shown in green ink the plan prepared and produced herewith.” 12. Order 26 Rule 14(3) reads as follows “Where the Court confirms or varies the report it shall pass a decree accordance with the same as confirmed or varied but where the Courts set aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.” 13. Therefore, the report of the Commissioner was accepted by the Sub-Court, Padmanabhapuram and a final decree was passed on 20.08.1976 to those who pay their respective Court Fees and accordingly, the vendor of the Plaintiff, namely 3rd Defendant along with defendants 1 and 3, got properties, i.e., in para 4 Ex.A-23. As per the final decree in O.S. No. 51 of 1966, no property was allotted with 12th defendant Marianayagam though his share was dealt by Commissioner in his report and a specific plot was also given to Marianayagam, that is, Sy.No.2499/2B. Since no Court Fees was paid, the final decree was not passed in his favour. The plot mentioned by the Commissioner is in different Survey Number and not related to the plaint properties. Therefore, neither Mariyanayagam nor his Vendor, obtained title over plaint schedule properties and if the defendants claim right on the basis of O.S. No. 51 of 1966, then the same can be obtained by filing necessary application, if they are legally entitled to with respect to Sy.No.2499/2B as decided by Commissioner and not on the property of Plaintiff in Sy.No.1631/2,1594/2.The Plaintiff purchased property as per the Exs.A5 to A7 dated 21.07.1977, after the passing of final decree, from the 2nd defendant in O.S. No. 51 of 1966. But the alleged E.P. was filed in the year of 1988, that is, more than 10 years from the date of the purchase and obtained a symbolic delivery ordered on 26.02.1993. But unfortunately, the plaintiff herein has not been made as the party to the proceedings in E.P. No. 67 of 1988 and he obtained a fraudulent order behind the back of the plaintiff and the order of the Execution Court is without any decree. 14. But unfortunately, the plaintiff herein has not been made as the party to the proceedings in E.P. No. 67 of 1988 and he obtained a fraudulent order behind the back of the plaintiff and the order of the Execution Court is without any decree. 14. The defendants’ Sale Deed Ex.B1 and B2 dated 25.02.1971 were executed by Sabia Beevi to Marianayagam. The said Sabia Beevi is not a party in O.S. No. 51 of 1966. But she claims right under a gift deed said to have been executed by her mother, the 2nd defendant in O.S.No.51 of 1966. The alleged gift deed was not produced. The gift deed is essential in view of Sabia Beevi’s earlier release deed Exs.A-20 and 21 of the year 1966 recited in Plaintiff’s sale deed Exs.A-5 to A7. Under Exs.A-20 and 21, Sabia Beevi was found to have surrendered her entire right in the property about 40 Acres to Mohamed Meeran. Therefore, anything let out to Sabia Beevi to convey to Marianayagam under Ex.B1 and B2 is doubtful. To clear the doubt, the production of the gift deed is necessary, since the burden to prove it is on them. The reason for her sale of property stated in Ex.B1 and B2 sale deed is that her financial strain to improve the property and her far away residence. The property described in the sale deed is Oodukoor 1/24 share is in many survey numbers i.e., many survey numbers for 9 Acres and 95 10/24 cents. In Survey No.1594/2, her area was described is 1 Acre 65 12/24 Cents. In Survey No.1631/2/2, her area was described as 65 20/24 cents. There is direction in the sale deed that the purchaser should implead in O.S.No.51 of 1966 for getting the 1/24 share partitioned separately. Marianayagam did not get specific plot or portion under his sale deed. He got only 1/24 share, that too, only in Oocukoor (without partition). Regarding Item No. 2, as per the 2nd Commissioner’s report in O.S. No. 51 of 1966 Marianayagam, the 12th Defendant was given Plot No.2B in Sy.No.2499 without road frontage. So, the 12th defendant objected it. Marianayagam did not get specific plot or portion under his sale deed. He got only 1/24 share, that too, only in Oocukoor (without partition). Regarding Item No. 2, as per the 2nd Commissioner’s report in O.S. No. 51 of 1966 Marianayagam, the 12th Defendant was given Plot No.2B in Sy.No.2499 without road frontage. So, the 12th defendant objected it. Considering the objection, the Court passed Ex.A-23 order on 06.08.1976 re-issuing the warrant to the same Commissioner for carving out the extent of the 12th defendant on the western side adjoining west of the road running in Sy.No.1631 with a road frontage of about 100 links and if it is not possible, then to carve out a plot on the eastern side of the road having about 100 links road frontage. Therefore, the Court has specifically directed that the learned Commissioner will carve out a plot without disturbing the plots allotted to the other parties and that the 12th defendant will pay Rs.100/- to the Commissioner within one week. Since the Commissioner’s batta Rs.100/- was not paid within stipulated one week period, the Court passed the Ex.A-24 final decree on 20.08.1976. The defendants made false submissions that they could not remit the commission batta due to illness of Marianayagam. The false version can be ascertained by reading the oral evidence of the 1st defendant in Ex.A-26 Judgment referred to in Page 70 of Ex.A-26 Judgment in Tamil ie., they did not pay the commission fee since the order was against them and hence, the property was not measured further. Therefore, the Court gave a finding that Marianayagam could have accepted Ex.A-33 final decree with the satisfaction of his plot 2B in Sy.No.2499, vide page No.67 of Ex.A26. In Ex.A-23 final decree, in para 8, Page 17, the Court observed that the 12th defendant has to work out his right in Item No.2 later, if necessary. But, the 12th defendant has not taken any steps to work out that remedy for the only reason that he was unsatisfied with the final decree orders in Ex.A-23 and A-24, especially Ex.A-23, wherein a specific direction was there, not to disturb the plots allotted to other parties. The same was also confirmed as the 12th defendant has to be satisfied with the allotment of Plot 2B in Sy.No.2499. 15. The same was also confirmed as the 12th defendant has to be satisfied with the allotment of Plot 2B in Sy.No.2499. 15. On the strength of fraudulent order in E.P.No.67 of 1988, the defendant trespassed into the plaintiff's property on 03.10.1987. Since Mariyanayagam failed to comply with the order passed in Ex.A-23, the defendant also failed to plead and prove regarding their possession over the property or extent or time period. Hence, mere filing of bills or tax receipt will not help the defendant to eclipse his illegality and trespass on others property. DW-1 has also not produced any document to prove her lawful possession over the property. The defendants claims that they have not trespassed and they are in lawful possession of the property. If so, such statement have to be proved by the defendant because plaintiff categorically proved his title over the property. 16. The 1st Appellate court failed to analyse that the defendants have not established any semblance of title or possession over the property. Their possession from 03.10.1987 is nothing but unlawful. They purchased property in Oodukoor i.e., the property was not confined to a particular portion. The sale deed directed them to join party in O.S. No. 51 of 1966. In Ex.B7 petition and order, they got supplementary preliminary decree for 1/24 share. In Ex.A-23 and A-24 final decree orders, the plot allotted to them is in Plot No.2B in Sy.No.2499 lying West of the Road. But the plaint schedule property is on the east of road. The further direction in that the order to work out his remedy later, was not complied with, which tantamount that they were satisfied with Plot 2 B in Sy.No.2499 lying west of the road. In Ex.A26 Judgment there is a finding in respect of the above statement. When that being so, their contention that they put up buildings etc., before their trespass in the property cannot be accepted. The 1st Appellate Court has failed to consider the same and the defendant also admitted the plaintiff's sale deed and her vendor’s right as per the final decree in O.S. No. 51 of 1966. So, the declaratory relief is not necessary as far as present case is concerned. The Exhibits supplied by the defendant are created for the suit and most of them are created after 03.10.1987, the alleged date of trespass. So, the declaratory relief is not necessary as far as present case is concerned. The Exhibits supplied by the defendant are created for the suit and most of them are created after 03.10.1987, the alleged date of trespass. The attitude of 1st Appellate Court to grant a relief in favour of the defendants by invalidating the sale deed of others in Sy.No.1631/2, 1594/2 at para No.33 is totally wrong on the 1st Appellate Court has exceeded its limits and granted a relief which has not been claimed by any party. 17. Therefore, the judgment and decree passed by Lower Appellate Court are liable to be set aside, accordingly, set aside. The Second Appeal is allowed, confirming the judgment and decree passed by the II Additional District Munsif, Kuzhithurai in O.S. No. 70 of 1998, dated 07.10.2014. No costs. Consequently, connected miscellaneous petition is closed.