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11.Originally, the plaintiffs 1 to 3 had laid the suit against the defendants 1 to 3 as well as the plaintiffs 4 and 5. Later, on obtaining the power deed marked as Ex.A1, it is found that steps have been taken by the plaintiffs 1 to 3 to transpose the defendants 4 and 5 as the plaintiffs 4 and 5 and continue the suit and it is found that the application for transposition filed in I.A.No.726 of 1994 has come to be entertained by the trial court on 08.09.1995 and it is found that the said I.A has not been contested by the third defendant, in particular, the third defendant having not filed any counter in the said I.A and accordingly the transposition of the plaintiffs 4 and 5 being sought for only on the footing of the power deed executed by them, in favour of the second plaintiff, marked as Ex.A1 and when it is found that the main contestant, namely the third defendant having not resisted the said application, it is found that accordingly, the plaintiffs 4 and 5 have come to be transposed from the array of the defendants to the array of the plaintiffs and it is hence found that the case of the third defendant that the legal heirs of Nallaiya and Gopal had died long back and therefore the above power deed Ex.A1 could not have been executed by the legal heirs as such cannot be accepted. If that be so, when the transposition sought for in I.A.No.726 of 1994 has been made only on the strength of the power deed Ex.A1, if the abovesaid defence set out by the third defendant has any element of truth, the third defendant would have opposed the transposition tooth and nail, by raising all sorts of resistance to ensure that the said application ends in dismissal. On the other hand, it is found that the third defendant having not put forth any resistance and thereby having admitted the case projected by the plaintiffs for transposition, it is seen that the present plea now raised by the third defendant in the suit that Ex.A1 is not a true document and the plaintiffs 4 and 5 are not the legal heirs of Nallaiya and Gopal as such cannot be accepted and rightly disbelieved by the first appellate court. The further plea raised by the third defendant that Nallaiya and Gopal had left behind only Gurusamy and Raju as their legal heirs and not the plaintiffs 4 and 5 also could not be accepted in any manner. Particularly, it is noted that, no such plea has been raised by them in specific, in the written statement and the same having been darted out by the third defendant for the first time only during the course of his evidence as rightly contended, no evidence without the foundation of the pleas could be accepted. It is seen that, accordingly, the abovesaid defence version projected by the third defendant and on that plea endeavoring to challenge the status of the plaintiffs' 4 and 5 as the legal heirs of Nallayan and Gopal had been rightly negatived by the first appellate court and it is thus found that, accordingly, the third defendant knowing that the alleged legal heirs namely Raju and Gurusamy are not in existence and only the plaintiffs 4 and 5 are the legal heirs of Nallyan and Gopal, did not endeavor to place any opposition to the transposition application filed in I.A.No.726 of 1994.

12.In addition to that as rightly put forth by the plaintiffs' counsel, the plaintiffs have vividly averred in the plaint about as to how they are entitled to claim the shares in the suit properties by tracing out their genealogy from the main tree i.e. Sanjeevi Naicker and accordingly, described that the plaintiffs 4 and 5 are the legal heirs of Nallaya and Gopal and thus entitled to claim shares in the suit properties. The foundation for claiming shares in the suit properties by the plaintiffs as well as the defendants in the suit properties has been set out by the plaintiffs in paras 1 to 5 of the plaint. The third defendant has not disputed the same in the written statement and as rightly put forth, the third defendant has admitted the allegations in paras 1 to 5 of the plaint and in particular, not disputed in specific the entitlement of the plaintiffs 4 and 5 to claim share in the suit properties as narrated in the plaint and in such view of the matter, when the pleas set out in the plaint had not been denied in specific by the third defendant as provided under Order 8 Rule 5 of the Code of Civil Procedure, it is seen that as rightly argued, the third defendant is deemed to have admitted the abovesaid pleas raised in the plaint and accordingly, it is also found that the third defendant had not chosen to contest the transposition application preferred in I.A.No.726 of 1994. It is thus found that the third defendant cannot be allowed to contend any further that the plaintiffs 4 and 5 are not legal heirs of Nallyan and Gopal in the light of the aforesaid reasonings.

16.The defence has also been put forth that the plaintiffs have not established that the power deed had been actually executed by the plaintiffs 4 and 5 in favour of the second plaintiff in the presence of the Notary Public. However, when it is found that, on a perusal of Ex.A1 power deed, the document has come to be executed by the plaintiffs 4 and 5 in favour of the second plaintiff in the presence of the Notary Public at Srilanka and the said Notary Public had also certified to that effect at the bottom of the power deed in a clear manner about the presence of the plaintiffs 4 and 5 and their execution of the power deed in favour of the second plaintiff at the relevant point of time and the execution of the document by the plaintiffs 4 and 5 knowing the contents of the same etc.,would go to amply establish that the power deed has been executed in the presence of a Notary Public as per law and accordingly, it is seen that the Courts below are justified in raising the presumption that Ex.A1 power deed is a duly executed power deed by the plaintiffs 4 and 5 in favour of the second plaintiff and the presumption invoked by the first appellate court as regards the same u/s.85 of the Indian Evidence Act, for the reasons afore stated, do not call for any interference as such and accordingly, it is seen that the materials placed on record go to establish that Ex.A1 power deed has been duly established to be executed by the plaintiffs 4 and 5 in favour of the second plaintiff in the presence of the Notary Public and accordingly, it is seen that the third defendant had also not contested the transposition application preferred by the plaintiffs based on the above said power deed and thus cumulatively seen, it is found that the plaintiffs have established the authenticity and genuineness of Ex.A1 power deed as per law and accordingly, it is seen that the first appellate court, is right in upholding Ex.A1 power deed and also raising the presumption as regards in the manner known to law. The presumption raised in respect of Ex.A1 power deed having not been discharged or rebutted by the third defendant in any manner, by placing acceptable and reliable materials and on the other hand, finding to have accepted the same by offering no resistance with reference to the same in the transposition application as above discussed and also not placing any other material to discredit the same, accordingly, it is seen that Ex.A1 power deed is a true and genuine document are binding upon one and all concerned. The plaintiffs have also established the revalidation of Ex.A1 Power deed through acceptable oral and documentary evidence.

17.In the light of the abovesaid reasonings, the first appellate court, on a proper appreciation of the materials placed on record finding that the judgment and decree of the trial court cannot be sustained as per law, for the reasons stated by it for negativing he plaintiffs' case, accordingly and rightly set aside the judgment and decree of the trial court for the reasons projected by it and further accordingly finding that the third defendant has not thrown any challenge to the power deed projected by the plaintiffs in the transposition application as well as not challenging the status of the plaintiffs 4 and 5 as put forth by the plaintiffs in the plaint by denying the same in specific as required under law as above pointed out, justified in holding the case in favour of the plaintiffs, on the premise that the admitted facts need not be proved and also it is found that the lower appellate court us justified in raising the presumption as regards the power deed u/s.85 of the Indian Evidence Act and when there is no material placed by the third defendant to rebut the said presumption and when on a reading of the power deed marked as Ex.A1 as a whole, it is seen that the concerned Notary Public has clearly certified at the foot of the power deed about the execution of the document in the presence of the parties concerned as per law, it is found that the first appellate court is justified in raising the presumption in favour of the document and for the reasons afore stated, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiffs and against the defendants.