JUDGMENT : Aggrieved over the finding of the first appellate Court in reversing the judgment of the trial Court in dismissing the suit, the present second appeal is filed. 2. The brief facts leading to the filing of the appeal is as follows: The parties are referred to as per the rank in the trial Court for the sake of convenience. The suit property originally belongs to one Shanmuga Konar, by virtue of his purchase, dated 27.08.1943. He had two sons. One is Vedhanarayanan Konar and Raman Konar. Vedhanarayanan Konar son Paramuthu has obtained a release deed from his only sister on 27.02.1991. Similarly, Raman Konar son Venkatachalaperumal has also obtained a release deed from his sisters on 27.02.1925. Accordingly, Paramuthu and Venkatachalaperumal become the absolute owners of the property. The first plaintiff has purchased the first item of the suit property from Paramuthu and Venkatachala Perumal on 20.03.1991. Similarly, the second plaintiff has also purchased the second item of the suit property on 20.03.1993 from Paramuthu and Venkatachalaperumal. Thereafter, the revenue records also changed. Patta was also issued in respect of first item of the property in Patta Nos.514 and 1661. Similarly, the second plaintiff has also obtained Patta in his name and the plaintiffs are enjoying the property continuously. They also obtained permission from the Local Planning Commission to put up a construction. The first defendant, who is totally a stranger to the suit property made an attempt to clear the bushes in the property on 10.06.2000. Hence, the plaintiffs have filed a suit in O.S.No.277 of 2000 originally for permanent injunction against the first defendant. Thereafter, in the appellate stage, the suit prayer was amended for declaration and for permanent injunction and defendant Nos.2 and 3 said to be the original owner of the suit property were impleaed in the suit itself. 3. The first defendant has filed a written statement as power agent of the defendants 2 and 3 and contended as follows: The boundaries in the suit schedule is not correctly described and the northern boundary of both the first and second schedule is wrong. To the north of both the plaint schedule properties only Survey No.993/1A1 is situated. Therefore, the description of the suit property is not properly given in the plaint and the plaintiffs have suppressed the material facts. 4. To the north of both the plaint schedule properties only Survey No.993/1A1 is situated. Therefore, the description of the suit property is not properly given in the plaint and the plaintiffs have suppressed the material facts. 4. Denying the rights of the plaintiffs, it is the contention of the defendants that immediate to the south of the Bye-pass road, the land in Survey No.993/1A1 is situated. One Dhrowpathi Ammal has purchased 16 ½ cents of land in Survey No.993/1, on 01.10.1942. The said Dhrowpathi Ammal has sold 3 cents out of 16½ cents to one Ramaiah Nadar in the year 1973, by registered sale deed, dated 31.03.1973. The remaining 13½ cents was in actual physical possession of the said Dhrowpathi Ammal till her death as an absolute owner. After the death of the said Dhrowpathi Ammal, her son by name Rathinasami and her daughter by name Subbammal / the defendants 2 and 3 are in joint possession and enjoyment of 13½ cents of land in Survey No.993/1A1. Since the defendants 2 and 3 are residing outside the village, they gave a power of attorney to the first defendant, by registered power of attorney on 29.03.2000. In pursuant to the same, the first defendant entitled the suit property and was removing the bushes from 13½ cents of land in Survey No.993/1A1. Hence, his contention is that the plaintiffs have no right in the suit property and the suit is bad for non-joinder of necessary parties. 5. In the additional written statement filed by the first defendant, it is stated that the rectification deeds, dated 18.06.2001, do not confer any title to the plaintiffs in respect of Survey No.993/1A. The rectification deeds have been created in a fraudulent manner only to fill up the lacuna in the written statement and the suit is also not maintainable without any prayer for declaration. However, the prayer for declaration was amended in the appellate stage. 6. Based on the above pleadings, the trial Court has framed the following issues: (I) Whether the suit is bad for non-joinder of necessary parties? (ii) Whether the description of the properties is not correct? (iii) Whether the plaintiffs were not in possession and right over the suit property? (iv) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? (v) To what other reliefs the plaintiffs are entitled to? (ii) Whether the description of the properties is not correct? (iii) Whether the plaintiffs were not in possession and right over the suit property? (iv) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? (v) To what other reliefs the plaintiffs are entitled to? and on additional issue, whether the suit is bad without the relief of declaration? 7. Before the trial Court, on the side of the plaintiffs, P.Ws.1 to 5 were examined and Exs.A1 to A18 were marked and on the side of the defendants, D.W.1 was examined and and Exs.D1 to D6 were marked and Commissioner's Report, Plan and Sketch were marked as Exs.C1 to C3. 8. The trial Court dismissed the suit on the ground that the suit is not maintainable without the relief of declaration and the boundaries are also not properly given. As against which, an appeal has been filed before the first appellate Court. During the first appeal, the relief of declaration was sought for by way of amendment of the plaint. The first appellate Court has allowed the amendment application and set aside the judgment of the trial Court and remanded the matter back to the trial Court. As against the remand order, an appeal was filed before this Court in S.A.No.613 of 2006. After hearing both the parties, this Court has allowed the appeal and directed the first appellate Court itself to decide the entire issue. While setting aside order of remand, this Court sustained the order of amendment of the plaint copy for the relief of declaration. The order passed in I.A.No.97 of 2005 is confirmed for amendment. Again, before the first appellate Court, P.W.2 was examined and additional witnesses viz., P.Ws.6 and 7 were examined on the side of the plaintiffs and Exs.P19 to P29 were marked and on the side of the defendants, D.Ws. 2 and 3 were examined and Exs.D7 and D8 were marked. 9. Based on the evidence, the first appellate Court has reappreciated the entire evidence and framed the following points for consideration: (I) Whether the first item of the suit property belongs to the first plaintiff? (ii) Whether the second item of the suit property belongs to the second plaintiff? and (iii) Whether the plaintiffs are entitled to declaration and injunction as prayed for? (iv) To what other reliefs, the plaintiffs are entitled to? 10. (ii) Whether the second item of the suit property belongs to the second plaintiff? and (iii) Whether the plaintiffs are entitled to declaration and injunction as prayed for? (iv) To what other reliefs, the plaintiffs are entitled to? 10. After re-appreciating the entire evidence and documents, the first appellate Court has reversed the finding of the trial Court and in fact, decreed the suit for declaration and injunction. As against which, the present second appeal has been filed by the pendente lite purchaser claiming that he has purchased the property from the second and third defendants. 11. While admitting the second appeal, the following substantial questions of law were framed. (I) Whether the judgment and decree of the lower appellate Court in decreeing the suit by relying upon Exs. A3 and A10, which are after suit documents, is sustainable ? (ii) Whether the judgment and decree of the lower appellate Court in fixing the burden of proof on the defend ant/appellant herein which is against Sections 101 to 103 of Evidence Act, 1872, is sustainable ? (iii) Whether the judgment and decree of the lower appellate Court in decreeing the plaintiffs suit with out considering Ex.B1 which is prior to Ex.A1 is sustainable ? and (iv) Whether the lower appellate Court is right in granting the relief of declaration, when the plaintiff shave not paid the Court fee for the same ? 12. The learned counsel appearing for the appellant has fairly conceded that the fourth substantial question of law framed by this Court does not arise as the proper Court fee has already been paid. He has canvassed the argument only in respect of other three substantial questions of law. 13. It is the contention of the learned counsel that plaintiffs claim to have purchased the suit property from one Venkatachalaperumal and Paramuthu, who are the grand sons of the original purchaser Soma Konar under Exs.A2 and A11. It is his contention that the sale deed do not indicate the Survey No.993 in Exs.A2 and A11. The plaintiffs are claimed to have purchased the suit property, whereas Exs.A2 and A11 do not relate to Survey No.993. They had purchased the property only in the year 1991. Only after filing of the written statement, Exs.A3 and Ex.A10, two rectification deeds executed by the vendors including the Survey No. 993/1A. The plaintiffs are claimed to have purchased the suit property, whereas Exs.A2 and A11 do not relate to Survey No.993. They had purchased the property only in the year 1991. Only after filing of the written statement, Exs.A3 and Ex.A10, two rectification deeds executed by the vendors including the Survey No. 993/1A. These rectification deeds have been executed by the vendors of the plaintiffs only after the written statement of the plaintiffs was filed, whereas, it is his contention that one Dhrowpathi Ammal has purchased 16½ cents of land in Survey No.993/1. Out of this 16 ½ cents, 3 cents have been sold by her under Ex.A9 in favour of one Ramaiah Nadar. Therefore, his contention is that in the suit property, the said Dhrowpathi Ammal had a right and the defendants 2 and 3 being the son and daughter of the said Dhrowpathi Ammal are entitled to the suit property and they have sold the property to the appellant herein. Therefore, the property has not been identified and the plaintiffs documents do not refer the Survey No.993 at any point of time and the description of the property has also not been properly established. The Patta relied upon by the plaintiffs does not disclose the Survey No.993/1. Hence, it is his contention that when the identification of the property has not been established and the appellant's purchaser had a title to 13½ cents in Survey No.993, the first appellate Court decreeing the suit for declaration is not based on proper appreciation of evidence. It is his further contention that the first appellate Court has relied upon the rectification deeds which were executed subsequent to the suit. Hence, his contention is that the burden cannot be shifted on the defendants and the plaintiffs, who seek for any relief, has to establish the identity of the properties and the first appellate Court has not properly appreciated the evidence. Hence, he prayed for allowing the appeal. 14. The learned Senior counsel appearing for the respondents has submitted that Ex.A1 clearly indicated that the plaintiffs purchaser have purchased the property not only in 1991 but also 1993. The first defendant, who is only a real estate man, who fought the case. Hence, he prayed for allowing the appeal. 14. The learned Senior counsel appearing for the respondents has submitted that Ex.A1 clearly indicated that the plaintiffs purchaser have purchased the property not only in 1991 but also 1993. The first defendant, who is only a real estate man, who fought the case. The second defendant's evidence clearly show that the suit property has been properly identified and the boundaries given in the document of the year 1943 have been changed due to passage of time. However, the fact remains that one of the permanent boundary in the eastern side, the channel is very much available. The Commissioner's Report and the Plan filed by the Commissioner clearly show that the defendants property is not at all the suit property. In the rectification deeds, no extent or area has been changed and only the survey number, which was omitted in the original sale deed, has been correctly included at a later point of time. Hence, it is his contention that the boundaries have been properly identified by the first appellate Court and the revenue records also clearly show that the properties have been mutated long back and now, the property has been sub-divided and lay out has been formed and some portion of the properties in the northern side of the suit property has been acquired for the purpose of laying bye-pass road. 15. Taking note of the same, the first defendant is a real estate man made an attempt to grab the suit property. Exs.A8 and Ex.A9 read together and seen that there is no dispute with regard to the title of the plaintiffs. The evidence of D.W.2 clearly show that their property lies only the area shown in the Commissioner Plan and not the suit property. Hence, his contention is that the first appellate Court has rightly decided all the issues on factual aspects and which cannot be a question of law in this case. Hence, he prayed for dismissal of the appeal. 16. The suit has been laid originally for bare injunction as against the power agent of the second and third defendants, the schedule of property mentioned in the plaint indicate that the property comprised in Survey Nos.991 and 993/1A together formed as house sites and the first plaintiff has purchased an extent of 2179 sq.ft. and the second plaintiff has purchased 2623 sq.ft. and the second plaintiff has purchased 2623 sq.ft. The suit property purchased as house sites is in three survey numbers. The fact that the property formed as a lay out is not in dispute. It is also not disputed by both sides that the bye-pass road is also running in two survey numbers and certain item of property was acquired for the purpose of bye-pass road. The plaintiffs trace their title from one Shanmuga Konar. Shanmuga Konar has purchased the property under Ex.A1 from one Harikrishna Konar and Perumal Ammal in Survey Nos.991, 992 and 993 to an extent of 6.8 acres. Ex.A1 of the year 1943 makes it very clear that the above said 6.8 acres were purchased in different Survey Nos.992/6 and 993/1 and Survey No.993/2. In Survey No. 993/2, the total extent is 61 cents, out of which, undivided certain extent is also purchased by them. It is an undisputed fact that the Shanmuga Konar had two sons viz., Raman Konar and Vedhanarayanan Konar. The said Raman Konar had one son viz., Venkatachala Perumal and two daughters viz., Nambi Ammal and Shanmugathammal @ Papathi and Vedhanarayanan Konar had one son viz., Paramuthu and one daughter Nambiammal. The sons of Raman Konar and Vedhanarayanan Konar have got their release deed from their respective sisters, thereby, they become the absolute owners of the property left by Shanmuga Konar. Therefore, it is the contention of the plaintiffs that both the plaintiffs have purchased the house sites from the original owner. The defendants have also claim their right in the suit survey number on the basis of Ex.B1. Ex.B1 was carefully seen. Dhrowpathi Ammal has purchased 23 cents in Survey No.996 and 16½ cents in Survey No.993/1 out of 61 cents. Since both sides claiming a right on the basis of their purchase. This Court has to see whether the subject properties actually lie and whether the plaintiffs are entitled to the relief of declaration or not. It is relevant to go through the document Ex.A1, as already discussed, shows that the plaintiffs' purchasers purchased an extent of 6.8 acres in 3 survey numbers. Now, the lis in this case relate to Survey No.993/1. It is relevant to go through the document Ex.A1, as already discussed, shows that the plaintiffs' purchasers purchased an extent of 6.8 acres in 3 survey numbers. Now, the lis in this case relate to Survey No.993/1. The plaintiffs' vendors in fact has purchased 8 cents in Survey No.993/1, out of 61 cents, as per Ex.A1, whereas, Ex.B1, when carefully seen, Dhrowpathi Ammal has purchased 16 ½ cents in Survey No.993/1 out of 61 cents. Therefore, the above documents makes it clear that both the plaintiffs' predecessor in title and the defendants' vendor have purchased the property in Survey No.993/1. Now, it has to be seen that where the exact extent lies within the suit property and whether the property was located as per the boundaries set out in the respective sale deeds. It is also relevant to note that both the plaintiffs' vendors and the defendants' vendors purchased the respective lands from the common owner viz., one Harikrishna Konar and others, as it could be seen from the above documents. It is also relevant to note that out of 16 ½ cents purchased under Ex.B1, Dhrowpathi Ammal has conveyed the property to one Ramaya Nadar under Ex.A9. Ex.B1 was carefully seen. 16½ cents purchased by Dhrowpathi Ammal in Survey No.993/1 within the following boundaries: South – Harikrishna Konar land, West – Madhavarambu Punjai, East – Channel, North - Masana Konar Punjai. Within the above boundaries, 16½ cents said to have been purchased by Dhrowpathi Ammal. It is an admitted fact that out of the above 16 ½ cents, an extent of 3 cents were sold to one Ramaya Nadar under Ex.A9. It is relevant to note that the sale deed has not been filed by the defendants, whereas, the plaintiffs have filed the sale deed to show the boundaries. In Ex.A9, it is specifically admitted by Dhrowpathi Ammal that the property namely 16 ½ cents is situated in the north eastern side and western portion of 3 cents have been sold to Ramaya Nadar. The above three cents were sold with the following boundaries: East – Dhrowpathi Ammal's property, South – Harikrishnan Konar property, West – Madhavarambu Punjai, North – Masana Konar Punjai. 17. The above three cents were sold with the following boundaries: East – Dhrowpathi Ammal's property, South – Harikrishnan Konar property, West – Madhavarambu Punjai, North – Masana Konar Punjai. 17. When we compare the two boundaries set out, Dhrowpathi Ammal, who claims to have purchased 16 ½ cents in Survey No.993/1 under document Ex.A9 has clearly stated that 16 ½ cents purchased out of total extent of 61 cents in Survey No.993/1 lie on the north eastern side and sold only the western portion of 3 cents to Ramaya Nadar in Ex.A9, all the three boundaries of Ex.A9 viz., south, west and north tallied with Ex.B1 boundaries. Only the eastern boundary is shown as Dhrowpathi Ammal property in Ex.A9, whereas, Ex.B1 eastern portion has been shown as channel. The above documents makes it very clear that after selling three cents, Dhrowpathi Ammal has retained 13½ cents only in the north eastern side in Survey No.993/1. This can be easily seen from the boundaries mentioned in both the documents. In such view of the matter, the eastern boundary in Ex.A9 as shown as remaining property of Dhrowpathi Ammal. Ex.A1 boundaries also shows that the original owners dealt with the remaining properties, at the relevant point of time. The revenue records filed on the side of the plaintiffs clearly show that Survey No.993 was sub-divided as Survey No.993/1A and the sketch, registers also filed on the side of the plaintiffs. Under Ex.A18, certain properties have been acquired for national highways and separately sub-divided. From the above documents particularly Ex.A9 and Ex.B1, one thing is made clear that the property purchased by Dhrowpathi Ammal viz., 16½ cents in original Survey No.993/1 was located on the north eastern side and it is also an admitted fact that the 3 cents were sold by Dhrowpathi Ammal to one Ramaya Nadar. 18. From the above documents, the plaintiffs have clearly established that the property purchased by the defendants under Ex.B1 is not situated within the suit properties. 18. From the above documents, the plaintiffs have clearly established that the property purchased by the defendants under Ex.B1 is not situated within the suit properties. Though the first defendant was examined, the first appellate Court has rightly held that he has come only as a power agent and he has no personal knowledge about the case, whereas D.W.2 / defendant No.3 has clearly admitted in her evidence that after sale of 3 cents by her mother, one Srikumar has purchased 3 cents and built a construction and she has categorically admitted that the suit property is very next property of Srikumar and she has also admitted that they never paid any kist to the suit property and submitted that eastern boundary is a channel and still it is available. As already discussed above in Ex.A9, her mother has clearly stated that the property situated in the north eastern side. The boundaries under Ex.A9 indicated that the original vendor Harikrishnan Konan also retained some property in the above survey number. It is also admitted by both the parties that out of 61 cents in Survey No.993/1, 21 cents were already acquired for National Highways which was also separately sub-divided, as could be seen under Ex.A18. It is also relevant to note that under Ex.B4, another 12 cents were sold in Survey No.993/1. The boundaries under Ex.B4 makes it very clear that the eastern boundary shown that Dhrowpathi Ammal has purchased 16 ½ cents. Exs.B1 and B4 make it very clear that 16½ cents purchased in Ex.B1 document only on north eastern side, but not a southern side, whereas the boundaries clearly indicated that the southern side only the predecessor in title names have been mentioned. The defendants claim title only on the basis of the documents. The document itself clearly indicate that the extent only lie on the north eastern side, not on southern side and D.W.2 has also admitted that permanent boundary is still available namely the channel. The Commissioner was appointed by the trial Court to identify the properties and the Commissioner's Report has clearly found out that an extent of 16½ cents lie on the north eastern side and 16 ½ cents covered under Ex.B1 lie only on the north eastern side. The Commissioner's Report clearly indicate that in the centre, the property was acquired for national highways, which was given a separate sub-division number. The Commissioner's Report clearly indicate that in the centre, the property was acquired for national highways, which was given a separate sub-division number. In fact, the report clearly tallied with the boundaries in Ex.A9. Therefore, it cannot be said that the appellate Court has placed the burden on the defendants to prove the title. The plaintiffs have traced the title through one Perumal Konar through registered the document. The defendants' document show that they have purchased 16 ½ cents in north eastern side as per Ex.A9. The Commissioner's Report also clearly tallied with Ex.A9. The properties have been put into several changes and certain extent was also acquired for highways. But still the property purchased under Ex.D1 is identified by the Commissioner and in fact, it is tallied with Ex.A9, the defendants' own document. The revenue records also mutated in favour of the plaintiffs in the year 1992, as per Ex.A15. 19. Though the boundaries have been put into several changes, one thing is very clear that one permanent boundary, the channel, the eastern boundary is admitted by the parties. D.W.1 in her evidence has admitted that in the eastern boundary, the channel is there. D.W.2 has admitted that the eastern boundary is still available. Ex.B1 - the eastern boundary of the defendants' property shown as a channel. The Commissioner's plan clearly shows that eastern boundary is still available which is permanent in nature. In Ex.A9, already discussed, clearly shows that only on the north eastern side, the defendants' vendors had purchased the property. The identity of the property has been clearly established. Therefore, it cannot be said that the entire burden is placed on the defendants. In fact, the defendants have not filed Ex.A9 document, the sale deed in respect of 3 cents, whereas the plaintiffs have filed copy of the sale deed - Ex.A9. As discussed in earlier, the boundaries in Ex.A9 and Ex.B1 clearly proved one fact that the property purchased by Dhrowpathi Ammal viz., 16 ½ cents in Survey No.993/1 out of 61 cents lie only on the north eastern side, which is also properly identified by the Commissioner, whereas the plaintiffs' document clearly show that the predecessor in title purchased the remaining properties. In the sketch, it is clearly indicated that the centre of the survey number, certain extent has been acquired for the purpose of bye-pass road. In the sketch, it is clearly indicated that the centre of the survey number, certain extent has been acquired for the purpose of bye-pass road. Ex.A29 makes it very clear that the suit property has been formed as house site and the plan also obtained by the plaintiffs. As already pointed out under Ex.A1, sale deed covers Survey No.993/1 also. Therefore, the finding of the first appellate Court in all aspects based on the documents and oral evidence. The first appellate Court has not placed the burden on the defendants to prove the plaintiffs' case. In fact, the first appellate Court analysed the entire facts and after considering the documents, has granted n declaration. This Court has also appreciated the documents, since it is a reversal finding. Accordingly, the substantial question of law is answered as against the appellant. 20. No doubt, in a suit for declaration, it is for the plaintiffs to establish the case and they cannot rely upon the weakness in the defendants' case. But on an analisation of oral and documentary evidence, this Court come to the conclusion that the plaintiffs have established their case on he basis of documents. It is also noted that the defendants 2 and 3 claiming right on the basis of purchase by mother, whereas they do not know where the property lies. In fact, they executed a power of attorney in the year 2000 in favour of the first defendant, who is the real estate man. This fact was established on record. Only when the power agent has created a problem, the suit came to be filed. Thereafter, 2 and 3 defendants were impleaded. Admittedly, the bye-pass road come on the survey number. Several house plots have been developed. Such being the position, the real estate man as a power agent taking interest to deal with the property gives a clear inference that due to escalation of prices, such an attempt has been made by the first defendant. After the death of the power agent, who said to have been murdered in some other circumstances, the second and third defendants have sold the property, pending litigation to the present appellant. The appellant is the pentente lit e purchaser and he purchased the property on 22.07.2005. The conduct of the defendants 2 and 3 in dealing with the property, during the pendency of the appeal also cannot be ignored altogether. The appellant is the pentente lit e purchaser and he purchased the property on 22.07.2005. The conduct of the defendants 2 and 3 in dealing with the property, during the pendency of the appeal also cannot be ignored altogether. Therefore, the pendente lite purchaser have purchased the litigation cannot have a better right than the vendor. Accordingly, the substantial question of law is answered as against the appellant and the appeal stands dismissed. No costs.