JUDGMENT C.V. Karthikeyan, J. The plaintiffs in O.S. No.458 of 1996 are the appellants herein. The plaintiffs, Krishnan had filed the above said suit before the learned District Munsif, Thuraiyur, seeking declaration of title and injunction with respect to the suit schedule properties. By Judgment and Decree dated 24.06.2002, the suit was decreed in so far as the first and second plaintiffs were concerned and dismissed in so far as the third and fourth plaintiffs were concerned. The defendants had also filed a counter claim. That was also dismissed. 2. The defendants then filed A.S. No.89 of 2002 which came up for consideration before the II Additional Subordinate Court, Tiruchirapalli. By Judgment and Decree dated 08.11.2004, the appeal was partly allowed and the Judgment and Decree of the Trial Court was modified. The suit was dismissed with respect to other reliefs. Counter claim was also partly allowed. 3. Challenging the said Judgment and Decree, the plaintiffs have filed the present Second Appeal. Pending the appeal, the first appellant died. Since the second, third and fourth appellants, his legal representatives were already on record, the death of the first appellant was recorded by the Court. 4. The second appeal was admitted on the following substantial questions of law: 1. Whether in law the lower appellate Court is right in granting decree based on Ex.B.2 when there was no extent sold by each of the vendor was mentioned? 2. Whether in law the lower appellate Court is right in granting the relief of recovery of possession, which is barred by law of limitation? 3. Whether in law the Court below was right in granting relief in favour of the respondents after coming to a conclusion that there was no pathway? 5. O.S.No.458 of 1996 : The first plaintiff Krishnan, his wife Pakkiam and his two sons Govindasamy and Periyasamy have filed the suit against his brother Nallendran and the wife of Nallendran. The suit was filed, seeking declaration of title and permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs. The suit property was Iyan Punja land in survey No.179/5A measuring 0.84 acres, survey No.179/5B measuring 0.85 acres and Survey No.179/8A measuring 1.63 acres in Kannannur revenue Village, Thuraiyur Taluk, Trichy District. The first and second plaintiffs had purchased the property. They claimed they do not know how to read and write. The suit property was Iyan Punja land in survey No.179/5A measuring 0.84 acres, survey No.179/5B measuring 0.85 acres and Survey No.179/8A measuring 1.63 acres in Kannannur revenue Village, Thuraiyur Taluk, Trichy District. The first and second plaintiffs had purchased the property. They claimed they do not know how to read and write. An agreement to use the pathway in common was prepared by the defendants and the first and second plaintiffs affixed their finger prints. They had grown tress in the said properties. They had also constructed cement tanks. They claimed that there was no common pathway in the plaint. But the plaintiffs stated that the defendants were interfering with their possession claiming that there was a pathway. It is under these circumstances, that the suit was filed. 6. The defendants had filed written statement along with counter claim. It had been stated that when the second plaintiff purchased the property in S.No.179/5A, at the same time, the first defendant had also purchased 3, cents. Similarly, in survey No.179/4, the defendants had purchased 6 + cents and in Survey No.179/8A the defendants had purchased 0.03 cents. It was stated in the lands purchased by the defendants, pathway with a breadth of 15 links was laid. It was stated that both the sides were using the said pathway. There was also an agreement on 28.11.1990. It was stated that apart from those lands, in survey No.179/5A, 11 cents and in survey No.179/8A, 0.05 cents were allotted for the pathway. It was stated that the plaintiffs had reduced the breadth to 3-feet from 9-feet and had put up a cement tank. They encroached into the pathway. It was stated that the pathway is to be used in common. The defendants had also filed counter claim, seeking such declaration and also for mandatory injunction to remove the obstruction and alternate prayer that the 'B' schedule property belongs to the first defendant and for recovery of possession. 7. Reply statement was filed by the plaintiffs. They claimed that the suit properties belonged to the plaintiffs. It was stated that the sale deed dated 03.11.1986 was not a valid document. They denied the agreement dated 28.11.1990. They stated that their finger prints were obtained by fraud. They claimed dismissal of the counter claim. 8. On the basis of the pleadings, the learned District Munsif, Thuraiyur framed necessary issued for trial. It was stated that the sale deed dated 03.11.1986 was not a valid document. They denied the agreement dated 28.11.1990. They stated that their finger prints were obtained by fraud. They claimed dismissal of the counter claim. 8. On the basis of the pleadings, the learned District Munsif, Thuraiyur framed necessary issued for trial. During the trial, the first plaintiff was examined as P.W.1. Two other witnesses were examined as P.W.2 & P.W.3. The plaintiffs marked Ex.A.1 to Ex.A.16. These included FMB plan as Ex.A.1 and the sale deeds in favour of the first and second plaintiffs, is Ex.A.2 dated 15.09.1982, Ex.A.5 dated 03.11.1986, Ex.A.6 dated 21.07.1986 and Ex.A.8 dated 28.11.1990. The Patta was marked as Ex.A.9. The tax receipts were marked as Ex.A.12 & A.13. The notice issued by the counsel for the defendants was marked as Ex.A.14 and the reply was marked as Ex.A.15. On the side of the defendants, Ex.B.1 to Ex.B.11 were marked. Ex.B.2, dated 03.11.1986 was a sale deed in favour of the first defendant. Ex.B.3 dated 28.11.90 was the agreement with respect to the pathway. Ex.B.6 & B.7 were Chitta and Ex.B.8 & Ex.B.9 were Adangal in favour of the first defendant. 9. On the basis of the oral and documentary evidence, the learned District Munsif found that there was no dispute with respect to Ex.A.2 sale deed in favour of the first plaintiff and with respect to the sale deed marked as Ex.A.6. It was also observed that on 03.11.1986, two documents had been registered. The first document was sale deed in favour of the second plaintiff Pakkiam, marked as Ex.A.5 and the second document was the sale deed in favour of the first defendant marked as Ex.B.2. By Ex.A.5, the second plaintiff had purchased 0.78 cents in survey No.179/5A and it was mentioned that 0.03, cents would be kept in common. On the same day, the first defendant had purchased 0.38 cents in survey No.179/9 by Ex.B.2. Both the sale deeds were executed by Kothandapani Naidu. The learned trial Judge held that conspiracy had been hatched by the first defendant by retaining 0.03, cent as common pathway. It was stated that the first plaintiff could not read and write. On the same day, the first defendant had purchased 0.38 cents in survey No.179/9 by Ex.B.2. Both the sale deeds were executed by Kothandapani Naidu. The learned trial Judge held that conspiracy had been hatched by the first defendant by retaining 0.03, cent as common pathway. It was stated that the first plaintiff could not read and write. It was further held by the learned Judge that the agreement dated 28.11.1990 marked as Ex.B.3 is not a document which had been executed out of free will and knowledge by the second plaintiff. It was stated that the contention of the plaintiffs that their finger prints were obtained by fraud is acceptable and more probable. Holding as above, the learned District Munsif, Thuraiyur decreed the suit in so far as the first and second plaintiffs were concerned and dismissed the suit so far as the third and fourth plaintiffs were concerned. The learned District Munsif also dismissed the counter claim filed by the defendants. 10. A.S. No.89 of 2002 : The first appeal came up for consideration before the the learned II Additional Subordinate Judge, Trichirapalli. The learned II Additional Subordinate Judge, Trichirapalli, re-examined the evidence on record and framed points for consideration. The learned Subordinate Judge stated that the conclusion of the learned District Munsif that there was a conspiracy by the second defendant was not based on any evidence. He also found that there was no such pleadings by the plaintiffs. The learned II Additional Subordinate Judge once again examined the documents and stated that the documents were registered documents and consequently a presumption has to be drawn that they have been lawfully executed and registered. If oral evidence is to be given against the documents then such evidence must be pleaded and proved. It was also stated that even if it is to be proved that the documents have been fraudulently prepared, they should have been canceled within a period of three years. The learned II Additional Subordinate Judge, partly allowed the first appeal and modified the Judgment and Decree of the Trial Court by granting declaration for 81, cent in survey No.179/5A, 85 cents in survey No.179/5B and 1.60 acres in survey No.179/8. The suit was dismissed with respect to the other relief’s and with respect to the counter claim it was also decreed with respect to the alternate relief of the declaration and recovery of possession. The suit was dismissed with respect to the other relief’s and with respect to the counter claim it was also decreed with respect to the alternate relief of the declaration and recovery of possession. The other reliefs were dismissed. 11. S.A.(Md) No.237 of 2006 : Aggrieved by the said Judgment and Decree of the first Appellate Court, the plaintiffs had filed the present appeal. Pending the appeal, the first appellant who was the first plaintiff died. The second appeal had been admitted on the following substantial questions of law: 1. Whether in law the lower appellate Court is right in granting decree based on Ex.B.2 when there was no extent sold by each of the vendor was mentioned? 2. Whether in law the lower appellate Court is right in granting the relief of recovery of possession, which is barred by law of limitation? 3. Whether in law the Court below was right in granting relief in favour of the respondents after coming to a conclusion that there was no pathway? 12. Heard arguments advanced by Mr.M. Saravanan, learned counsel for the appellants and Mr. R. Vijayakumar, learned counsel for the respondents. For the sake of convenience the contesting parties shall be referred to as Plaintiffs and Defendants. The plaintiffs are the appellants and the defendants are the respondents. 13. The plaintiffs had filed O.S.No.458 of 1996 on the file of the District Munsif Court, Thuraiyur. The plaintiffs had filed, seeking declaration of title and injunction restraining the defendants from interfering with their peaceful possession. The first plaintiff Krishnan and the second plaintiff Pakkiam are the parents of the third and fourth plaintiffs Govindasamy and Periyasamy. Even before examining the issues, it must be metnioned that the trial Court had dismissed the suit as against third and fourth plaintiffs and theyt had not perferred any appeal. 14. The first defendant had purchased 0.38 cents in survey No.179/9. By Ex.A.5, the second plaintiff had purchased 0.84 + cents out of 1.69 acres in survey No.179/5 and 0.03, cent was kept in common by Kothandapani Naidu out of 0.06 + cents. It was stated that 0.03, cent was kept as common pathway in the sale deed. The learned District Munsif found that there was no reason to retain 0.3, cent by Kothandapani Naidu. According to the learned District Munsif this smelled of conspiracy. It was stated that 0.03, cent was kept as common pathway in the sale deed. The learned District Munsif found that there was no reason to retain 0.3, cent by Kothandapani Naidu. According to the learned District Munsif this smelled of conspiracy. However, the learned District Munsif cannot impugn conspiracy theory without pleadings and admissible evidence on the same. It is the parties who have to allege conspiracy in their pleadings and substantiate such pleadings by evidence. The Court cannot come to any such conclusion. This conclusion by the Trial Court had been reversed by the first Appellate Court. The first Appellate Court had taken a more balanced view and had stated that the existence of pathway has been established by evidence. The first Appellate Court had modified the Judgment and Decree of the Trial Court and had granted declaration of title with respect 81, cents in survey No.179/5A. This is in conformity with Ex.A.5 were by the second plaintiff had purchased 0.78 cents and 0.03, cents in survey No.179/5A. This would mean that the second plaintiff had actually purchased only 81, cents in survey No.179/5A. There is no dispute with respect to survey No.179/5B in which the first and second plaintiffs have purchased 85 cents. With respect to survey No.179/8A, the plaintiffs have claimed 1.63 acres. However, it must be kept in mind 0.03, cents had been retained as common pathway. Consequently, by subtracting that area, the first Appellate Court had granted a declaration of title with respect 1.60 acres. I find no infirmity in the said finding. However, the first Appellate Court had also granted an alternate relief on the counter claim and had granted both declaration and recovery of possession for the defendants. With respect to the same, I hold that declaration can be granted but since the pathway is kept in common there cannot be recovery of possession to the extent of 0.03, cents. It is the contention of the defendants that there is a common pathway. Consequently, to that extent alone declaration can be granted and recovery of possession is not granted with respect to 0.03, cents in survey No.179/8A. 15. In view of the above discussion the first substantial question of law which had been framed is answered that the lower Appellate Court was right in granting a decree was based on Ex.B.2. Consequently, to that extent alone declaration can be granted and recovery of possession is not granted with respect to 0.03, cents in survey No.179/8A. 15. In view of the above discussion the first substantial question of law which had been framed is answered that the lower Appellate Court was right in granting a decree was based on Ex.B.2. As a matter of fact, the lower Appellate Court had also considered Ex.A.5. 16. The second substantial question of law is answered is that the Judgment of the lower Appellate Court is modified and relief of recovery of possession in the counter claim is negatived to an area of 0.03, cents in survey No.179/8A. 17. The third substantial question of law is answered that the first Appellate Court was right in granting of the relief of the declaration to the defendants. 18. During the course of arguments, the learned counsel for the appellants had stated that the documents executed by the plaintiffs are non est in law since the plaintiffs are illiterates and their thumb impression had been obtained by fraud. However, such a substantial question of law was not framed at the time of admission of the second appeal. 19. The first Appellate Court had correctly answered that contention by stating that fraud must not only have been pleaded but also should be proved. The lower Appellate Court had relied on the evidence of D.W.3 who was the attesting witness and had stated that the documents had been executed in accordance with established procedure and after explaining the contents to the plaintiffs. Consequently, this Court is not taking up that argument for consideration. 20. In view of the above discussion, the Second appeal is partly allowed. The Judgment and Decree of the first Appellate Court in A.S. No. 89 of 2002 dated 08.11.2004 is confirmed, but modified with respect to the decree with respect to the recovery of possession which is negatived to an extent of 0.03, cents in survey No.179/8A alone. 21. In the result, the Second appeal is partly allowed. No costs.