IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 26.8.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.910 of 1998 and C.M.P.No.8921 of 1998 1. G.Sekar (died) 2. S.Amudha 3. S.Sathiyakala (Minor) 4. S.Sathish Kumar (Minor) 5. G.Sundarathammal (Appellants 2 to 5 brought on record as L.Rs. Of the deceased sole appellant vide order dated 24.7.2003 made in C.M.P.Nos.7220 to 7222 of 2002) (Minor appellants 3 and 4 are rep by their mother and guardian S.Amudha) Appellants/Respondent/ Plaintiff vs. 1. Rajendran 2. Dhanabalan Respondents/Appellant/ Defendant For appellants : Mr.R.N.Kothandaraman For RR1 and 2 : Mr.P.Gopalan Prayer:- Second Appeal against the judgment and decree dated 29.1.1998 in A.S.No.68 of 1997 on the file of the Additional Subordinate Judge, Nagapattinam reversing the judgment and decree passed in O.S.No.735 of 1995 dated 30.12.1996 on the file of the District Munsif, Mannargudi. JUDGMENT The plaintiff, who was successful in the Trial Court and lost https://hcservices.ecourts.gov.in/hcservices/ before the first appellate court is the appellant. 2. The appellant/plaintiff filed the suit for injunction stating that the suit property originally belonged to the plaintiff's grandfather Vallusamy Thevar, having purchased the same under a registered document dated 11.2.1924 and at that time, it was in R.O.R. Survey No.106/4 and after the abolish of inam as per Act 26/1963, it was resurveyed as 688/4 and Govindaraj son of Vellusamy was enjoying the property by planting trees and B memo was issued against him and after his death, his son, the plaintiff is enjoying the property and the respondents/defendants have no right or possession or enjoyment and as they are trying to interfere with the rights of the appellant/plaintiff, the suit was filed for injunction. 3. The respondents are brothers and they dispute the title and possession of the suit property by the appellant/plaintiff and stated that even in the year 1991, they filed a suit against one Marimuthu in respect of the suit property and obtained a decree in their favour and they are in possession and enjoyment and originally 34 cents in S.No.688/4 belonged to Natesa Thevar and under a settlement dated 29.2.1963, he settled the same in favour of the defendants/respondents and therefore, they are absolute owners of the suit property and they are in possession of the property and they also filed a suit in O.S.No.314/91 against one Marimuthu and obtained a decree and therefore, the suit filed by the plaintiff is not maintainable. The Trial Court, on the basis of the oral evidence and the documents filed by the parties, decreed the suit as prayed for and the first appellate court reversed the judgment and decree and dismissed the suit holding that the defendants proved the title to the suit property and therefore, the suit for bare injunction filed by the appellant/plaintiff is not maintainable against the respondents/defendants. 4. In the second appeal, the following substantial question of law was framed:- "Whether the lower court is right in refusing to grant injunction contrary to the legal position that the plaintiff has to prove his title, possession, prior to the suit as well as on the date of the filing of the suit, both positively and also by admission on the part of the defendants?" 5. Mr.R.N.Kothandaraman, learned counsel for the appellants would submit that the lower appellate court, without properly appreciating https://hcservices.ecourts.gov.in/hcservices/ the report of the commissioner, plan and the oral evidence wherein the respondents admitted the possession of the plaintiff, erred in dismissing the suit filed by the plaintiff. The learned counsel for the appellants further submitted that the boundary recitals in Ex.A2 and the boundary recitals of the suit properties are not identical and the commissioner accepted the possession of the plaintiff in the suit property and issue of B memo Ex.A9 and the plaintiff constructed houses in the suit property and also paid taxes and the report of the commissioner also would prove that there are houses in the suit property and it was admitted by the respondents that those houses were constructed by the plaintiff and having regard to the factum of possession, the Trial Court has rightly decreed the suit and without appreciating the same, the first appellate court has allowed the appeal and dismissed the suit. 6. On the other hand, the learned counsel for the respondents Mr.P.Gopalan submitted that as per Ex.A1, Subramania Thevar, the grandfather of the respondents mortgaged the suit property of an extent of 17 cents and his brother Natesa Thevar was the owner of 17 cents and Subramania Thevar sold the property of an extent of 17 cents to Natesa Thevar and thus Natesa Thevar became owner of 34 cents and he settled that 34 cents of property in favour of the defendants under Ex.B2 and therefore, the respondents/defendants became the owner of the property and even assuming that the appellants are in possession of the property, there cannot be an injunction against the true owner viz., the respondents and therefore, the lower appellate court has rightly allowed the appeal and dismissed the suit. 7. In the Trial Court, an Advocate Commissioner was appointed and he submitted the plan and report which were marked as Exs.C1 to C3 and as per the report of the commissioner, the suit property was described as ABCD in that plan and the property covered under Ex.B2, as claimed by the respondent was marked as EAHGDF which forms part of ABCD. The Advocate commissioner also found that there are houses constructed within the borders ABCD and it is admitted that the houses are in occupation and possession of the appellants. 8. Further, in evidence, DW1 viz., the second defendant has admitted that the plaintiff is in possession and enjoyment of the suit property. Therefore, having regard to the report of the commissioner and admission of the second defendant, I am of the opinion that the lower appellate court erred in allowing the appeal and dismissing the suit. 9. Further, the contention of the respondents was that they filed https://hcservices.ecourts.gov.in/hcservices/ the suit in O.S.No.314 of 1991 against one Marimuthu in respect of the same property and that suit was decreed in their favour and a reading of the boundaries stated in O.S.No.314 of 1991 and the boundaries in the present suit will make it clear that the suit property in O.S.No.314 of 1991 and the present suit property are not one and the same. Further, the appellants are not parties to the said suit and therefore, the decree obtained in O.S.No.314 of 1994 will not be binding the appellants. 10. Thus, having regard to the fact that the appellants are found to be in possession and their possession is also admitted by the respondents in evidence and the boundary recitals in O.S.No.314 of 1994 do not tally with the boundary recital of the present suit property, I am of the view that the Trial Court has rightly decreed the suit and the lower appellate court erred in dismissing the suit and hence, the substantial questions of law is answered in favour of the appellants. In the result, the second appeal is allowed. The judgment and decree of the lower appellate court is set aside and the judgment and decree of the Trial Court is restored. No costs. The connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. To 1. The Additional Subordinate Judge, Nagapattinam. 2. The District Munsif, Mannargudi. 3.The Section Officer, VR Section, High Court,Madras. +1cc to M/s. P.Gopalan, Advocate Sr 53575 KJ(CO) km/11.11. S.A.No.910 of 1998 https://hcservices.ecourts.gov.in/hcservices/