JUDGMENT (Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.120 of 1999 dated 19.11.1999 on the file of the Additional Sub Court, Nagapattinam confirming the judgment and decree made in O.S.No.271 of 1995 dated 30.06.1998 on the file of the District Munsif Court, Nannilam.) 1. The plaintiff in O.S.No.271 of 1995 on the file of the District Munsif Court, Nannilam is the appellant herein. The suit in O.S.No.271 of 1995 had been filed seeking permanent injunction restraining the defendants therein from interfering with the peaceful possession of the plaintiff with respect to the suit schedule property and also restraining them from interfering with the plaintiff's right to put up construction in the said property and also for costs. 2. The said suit, was dismissed by judgment dated 30.06.1998. The plaintiff then filed A.S.No.120 of 1999 before the Sub Court at Nagapattinam. The said appeal suit was also dismissed on 19.11.1999. The plaintiff then filed the present Second Appeal. 3. The present Second Appeal had been admitted on the following substantial question of law: "i).In view of the finding that the plaintiff is in possession and enjoyment of the eastern 2-1/4 cents in the suit property whether the Courts below erred in dismissing the suit in its entirety?" O.S.No.271 of 1995 (District Munsif Court, Nannilam):- 4. The plaintiff claimed that the suit property consisted of vacant land of 2 and 1/2 cents in Arulmozhithevan Village, Nannilam in S.No.85/3B. It had been stated that the suit property originally belonged to Vaithialinga Vanniyar. The plaintiff claimed that she had purchased the property from the son of Vaithialinga Vanniyar by name Ramu Vanniyar by sale deed dated 27.04.1992. The 1st defendant had no right, title or interest over the suit property. The 1st defendant had actually tried to purchase the property from the aforesaid Ramu Vanniyar, but could not do so. It was stated that when the plaintiff attempted to put up construction on 14.09.1995, the 1st defendant had protested and had raised objections. It was under those circumstances that the suit was filed for permanent injunction seeking protection of possession. 5. A written statement had been filed by the defendants also affirming the fact that the property originally belongs to Vaithialinga Vaniyar. They further stated that Vaithialinga Vaniyar had two sons and one daughter. One of the sons was the vendor of the plaintiff. 5. A written statement had been filed by the defendants also affirming the fact that the property originally belongs to Vaithialinga Vaniyar. They further stated that Vaithialinga Vaniyar had two sons and one daughter. One of the sons was the vendor of the plaintiff. The 1st defendant was the son-inlaw of Vaithialinga Vanniyar. It was claimed that the vendor Ramu Vanniyar was never in possession of the property. The defendants are residing in the house to the West of the property. They have been in possession for more than 50 years. It was also stated that Vaithialinga Vanniyar executed a Will in the year 1963. The house where the defendants resided was bequeathed to his daughter Bhagiyam. There was a fence demarcating the house and vacant space bequeathed to Bhagiyam and the suit property. It was stated that the property of the vendor of the plaintiff was much smaller and therefore, it was claimed that the plaintiff was not in lawful possession of the entire property. It was therefore stated that the suit should be dismissed. 6. On the basis of the pleading, the learned Trial Judge had framed the following issues:- “i).Whether the plaintiff had right over the suit schedule property and was in possession of the suit schedule property? ii).Whether the suit schedule property had been properly described? iii).Whether the cause of action as stated in the plaint is true? iv).Whether the plaintiff is entitled to the relief of permanent injunction? v).To what reliefs are the plaintiff entitled to?” 7. During the course of trial, the husband of the plaintiff, was examined as PW-1. The plaintiff marked Exs.A1 to A10. Ex.A1 was the sale deed dated 27.04.1992. The other documents related to purchase of materials for putting up construction and letter correspondences to the District Collector and other authorities. 8. The 4th defendant was examined as DW-1. On the side of the defendant Exs.B1 to B3 were marked. Ex.B1 was the Will of Vaithialinga Venniyar dated 26.06.1963. 9. An Advocate Commissioner had also been appointed and the report and sketch of the Advocate Commissioner were marked as C1 and C2. The report of the surveyor were marked as Exs.C3 and C4. 10. On the basis of the pleadings and evidence adduced, the learned District Munsif observed the claim of the defendants that Vaithialinga Vanniyar had bequeathed only 2 cents by way of Ex.B1 / Will. The report of the surveyor were marked as Exs.C3 and C4. 10. On the basis of the pleadings and evidence adduced, the learned District Munsif observed the claim of the defendants that Vaithialinga Vanniyar had bequeathed only 2 cents by way of Ex.B1 / Will. However, in the sale deed in favour of the plaintiff, property measuring 2 ½ cents had been conveyed. The defendants had raised an issue as to how the plaintiff can claim title over the balance ½ cents, which according to the defendants, the vendor of the plaintiff had no right or authority to convey. The learned District Munsif found as a fact that the vendor of the plaintiff was bequeathed only 2 cents and he had conveyed 2 ½ cents and therefore, held that the sale deed to that particular extent cannot be taken to binding. 11. Thereafter, the Trial court proceeded to examine the report of the Advocate Commissioner and stated that the land said to be in possession of the plaintiff was 2 ¼ cents and that there was a fence after 2 ¼ cents and thereafter was the remainder portion were the defendants resided. It was therefore stated that even though in the sale deed of the plaintiff the schedule had been mentioned as 2 ½, the plaintiff was entitled to 2 ¼ cents. In view of all these reasons, the suit was dismissed in entirety claiming that the plaintiff had sought injunction for 2 ½ cents, when he was not in possession of entire 2 ½ cents. A.S.No.120 of 1999 (Additional Sub Court, Nagapattinam):- 12. The unsuccessful plaintiff then filed the aforementioned appeal suit. This came up for consideration before the learned Additional Sub Judge, Nagapattinam, who by judgment dated 19.11.1999 had dismissed the appeal suit. 13. The learned Additional Sub Judge had framed points for consideration. The only point whether the judgment of the Trial Court dismissing the suit was correct. 14. Once against the learned First Appellate Court Judge examined Ex.B1 and stated that the vendor had been bequeathed only 2 cents, but had conveyed 2 ½ cents and therefore, wondered as to how the plaintiff could claim title for the additional ½ cents. It was stated that there was a fence which demarcated the 2 ½ cents into 2 parts namely, 2 ¼ cents and 1/4 cent which was merged with the property of the defendants. It was stated that there was a fence which demarcated the 2 ½ cents into 2 parts namely, 2 ¼ cents and 1/4 cent which was merged with the property of the defendants. However, it was also observed that the said fence was put up only just prior to the inspection of the Advocate Commissioner. However, it was found that the fence existed. 15. The First Appellate Court did not give any negative finding against the plaintiff with respect to the title. However, had held as follows, “So, it is held for point No.1 that the judgment and decree of the trial court dismissing the plaintiff's suit is incorrect”. If it had been found that the judgment and decree was incorrect, then the approach would have been to set aside that the judgment and decree of the Trial Court and allow the appeal. However, the next line is as follows, “So it is decided to dismiss the appeal”. The First Appellate Court then dismissed the appeal. S.A.No.41 of 2001:- 16. The plaintiff has then approached this Court by way of filing the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law: "i).In view of the finding that the plaintiff is in possession and enjoyment of the eastern 2-1/4 cents in the suit property whether the Courts below erred in dismissing the suit in its entirety?" 17. Heard Mr.G.Mohanakrishnan learned counsel for the appellant and Mr.T.R.Srinivasa Ayyangan, learned counsel for the 4th respondent. 18. It was urged by the learned counsel that the judgment of the Trial Court have to be interfered with particularly because, the Trial Court has found as a fact that the plaintiff was in possession of 2 ¼ cents and could have, under Order VII Rule 7 of CPC granted such relief as was just namely an injunction for the aforementioned 2 ¼ cents. The First Appellate Court had also taken a tangential view and had held that the judgment and decree of the Trial Court is incorrect and then proceeded to dismiss the appeal. The learned counsel wondered as to the reasons given and stated that Ex.A1, sale deed very clearly mentioned that the plaintiff had purchased 2 ½ cents. It was a vacant land. The learned counsel wondered as to the reasons given and stated that Ex.A1, sale deed very clearly mentioned that the plaintiff had purchased 2 ½ cents. It was a vacant land. It was therefore contended that since title had been declared it should be taken that the plaintiff had been in possession of the said land. The learned counsel urged this Court should interfere with the judgments of the Courts below. 19. I have carefully considered the arguments advanced and perused the materials on record. 20. The plaintiff had filed the suit seeking permanent injunction with respect to lands measuring 2 ½ cents. The plaintiff claimed that the he had purchased the land by sale deed marked as ExA2. The vendor of the plaintiff claimed title by bequeath under a Will, Ex.B1, executed by his father, Vaithialinga Vanniyar, the original owner of a larger extent of land. 21. By the said Will, Vaithialinga Vanniyar had bequeathed 2 cents to the vendor of the appellant herein and the remaining 8 cents to his daughter. The 1st defendant is the husband of the said daughter. He claimed to be in possession of the remaining portion of the lands. He further claimed that there is a fence which run across the plaintiff's land, cutting the plaintiff's land into two parts namely, 2 ¼ cents and ¼ cents, which ¼ cents had merged with the property allotted to the daughter. Therefore, it is contended that the plaintiff was in possession of 2 ¼ cents alone. As a fact it has been recorded by the First Appellate Court that the said fence had been put up just before the visit of the Advocate Commissioner. 22. At any rate, the entire 2 ½ cents said to have been purchased by the plaintiff, is a vacant land. With respect to vacant land, the proposition is that the possession follows title. That proposition of law cannot be disputed. 23. The only issue is whether the courts below were correct in restricting the holding of the plaintiff to 2 cents and 2 ¼ cents, when Ex.A1 clearly shows that he purchased 2 ½ cents. The Courts had done so, on the basis of the Ex.B1. There is no record to show that the said Will had been proved in manner known to law. Proof of any Will is essential. 24. The Courts had done so, on the basis of the Ex.B1. There is no record to show that the said Will had been proved in manner known to law. Proof of any Will is essential. 24. Section 63 of the Indian Succession Act, is as follows:- “63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:— (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 25. Section 68 of the Indian Evidence Act, 1872, is very clear. Section 68 of the Indian Evidence Act, 1872, is as follows:- “68. Proof of execution of document required by law to be attested. Section 68 of the Indian Evidence Act, 1872, is very clear. Section 68 of the Indian Evidence Act, 1872, is as follows:- “68. Proof of execution of document required by law to be attested. –– If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 26. If a document is required to be attested, then it has to be proved by examining any one of the attesting witnesses. A perusal of the evidence adduced shows that it is only the 1st defendant alone who has been examined as a witness. Therefore, even though the Will exists, and had been produced as a document, it had not been proved in manner known to law. If at all the vendor of the plaintiff had conveyed more lands than what was allotted to him under the Will, then the person aggrieved would be his own sister namely, the wife of the 1st defendant and she should have been taken steps to question such a sale deed and question the vendor of the plaintiff as to how he could sell a portion of land which was actually bequeathed to her, be it just ½ cents. That step had not been taken either by the 1st defendant who claimed to be in possession or by his wife, the daughter of Vaithialinga Vanniyar who was also a beneficiary under the Will, Ex.B1. It is also to be mentioned that once Ex.A1 sale deed had been produced, in which the property in the schedule reflects 2 ½ cents, no amount of oral evidence can be adduced over riding the written document. 27. Section 92 of the Indian Evidence Act, 1872, is clear on that point. Section 92 of the Indian Evidence Act, 1872 is as follows: “92. Exclusion of evidence of oral agreement. 27. Section 92 of the Indian Evidence Act, 1872, is clear on that point. Section 92 of the Indian Evidence Act, 1872 is as follows: “92. Exclusion of evidence of oral agreement. –– When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1). ...... Proviso (2). ...... Proviso (3). ...... Proviso (4). ...... Proviso (5). ..... Proviso (6). .....” 28. Therefore, till Ex.A1 stands, it being a registered document, it has to be taken as established that the plaintiff had purchased 2 ½ cents. When she had purchased 2 ½ cents is the owner of 2 ½ cents of vacant land, the proposition of law is very clear that possession follows title. 29. I hold that the plaintiff would be entitled for injunction as prayed for in the suit. I would therefore interfere with the judgments of both the Trial Court and the First Appellate Court and set aside the same. However, in view of the peculiar relationship among the parties, I would refrain from awarding costs. 30. In the result, i).The Second Appeal is allowed, however without costs. ii).The judgment of the Trial Court in O.S.No.271 of 1995 dated 30.06.1998 on the file of the District Munsif Court, Nannilam, is set aside. iii).The Judgment of the First Appellate Court in A.S.No.120 of 1999 dated 19.11.1999 on the file of the Sub Court, Nagapattinam, is set aside.