O.A.Nos.289 and A.No.89 of 2011 in C.S.No.289 of 2006 V.PERIYA KARUPPIAH, J., O.A.No.289 of 2011: This application has been filed by the applicants seeking to grant an order of interim injunction restraining the respondent/plaintiff, their men, agent or any other person claiming under him from any manner interfering with the applicants' peaceful possession and enjoyment of the suit schedule item Nos.1 and 2 of the property detailed in the judges summons pending disposal of the suit. 2. O.A.No.89 of 2011 : This application has been filed by the applicants seeking to grant an order of interim injunction restraining the respondent/plaintiff, their men, agent or any other person claiming under him from any manner dealing, encumbering or alienating the suit properties as detailed in the Judges summons pending disposal of the suit. 3. The brief facts of the case of the applicants are as follows:- (a) The applicant is the 1st defendant in the suit. The respondent/plaintiff filed the above suit for declaration that the plaintiff and the defendants 6 and 7 are jointly entitled for the suit schedule properties and for recovery of possession of the item Nos. 1 and 2 of the suit properties from defendants 1 to 5 and also for other reliefs. (b) According to the respondent/plaintiff, his paternal grand father V.Ramasamy Naidu had two wives and the 2nd wife was one R.Kanagavalli Ammal, The grand father V.Ramasamy Naidu had one son through his 1st wife and his name is R.Balasubramaniam and the respondent herein is the son of R.Balasubramaniam. The 6th defendant is the wife and the 7th defendant is the daughter of R.Balasubramaniam. The said V.Ramasamy Naidu had no issues through his 2nd wife Kanakavalli Ammal. According to him the suit properties belong to the said Kanakavalli Ammal and on her death the respondent/plaintiff and defendants 6 and 7 as the legal heirs of the said Kanakavalli Ammal are entitled for the same. Since the applicants/defendants disputed the rights of the applicant and defendants 6 and 7, the above suit was filed for the relief of declaration and for other reliefs. (c) The applicants/defendants filed the written statement disputing the claim of the plaintiff and others on the ground that the said Kanakavalli Ammal during her life time had executed a Registered Will dated 19.12.2003 in respect of all her properties and as per the Will, the applicants are the beneficiaries and the suit properties are bequeathed in favour of the applicants. The applicants 1 and 2 are Kanakavalli Ammal's brother's sons and the 3rd applicant is the sister of the testatrix Kanakavalli Ammal. During the life time of Kanakavalli Ammal, the respondent/plaintiff raised dispute with regard to the marital status of Kanakavalli Ammal and claimed that she is not the legal heir of deceased V.Ramasamy Naidu. The respondent herein conducted several Court proceedings against Kanakavalli Ammal disputing her valuable right and now for the sake of claiming her property he is now making contradictory statement that he is the legal heir of the deceased Kanakavalli Ammal. (d) During her life time, the deceased Kanakavalli Ammal, in a sound and disposing state of mind, had executed a registered Will dated 19.12.2003 under which her properties were given to the applicants herein as per the Will. The suit item No.2 of the property is the item No.1 of the property in the Will and the same is bequeathed in favour of the 1st applicant. The suit item No.3 of the property is the item No. 2 of the property in the Will and the same is bequeathed in favour of the 2nd applicant. The suit item No. 1 of the property is item No.3 of the property in the Will and the same is bequeathed in favour of the 5th applicant. In respect of movables, the same were bequeathed in favour of the applicants 2 and 3. Since the applicants are claiming their rights based on the Will of the deceased Kanakavalli Ammal, they have filed a petition before this Court in O.P.No.473 of 2010 for granting Letters of Administration of the Will dated 19.12.2003. In the said O.P., notices were sent to the respondent/plaintiff through Court and privately. The 1st respondent/plaintiff on coming to know of the filing of O.P., to frustrate the rights of the applicants herein had taken steps to alienate the suit properties. The suit properties 1 and 2 are vacant lands. During the 2nd week of January 2011, the applicants were informed by their relatives and by reliable sources that the 1st respondent/plaintiff is trying to sell the suit properties. The relatives who are having lands near the suit item No. 2 had informed the applicants that several persons are visiting the property for purchase and the respondent/plaintiff is taking hectic steps to alienate the same. The respondent/plaintiff has filed the present suit for the relief of declaration and recovery of possession of the suit properties 1 and 2. He is now without referring to the same is trying to alienate the suit properties. The applicants are the absolute owners of the suit properties and the O.P. filed by the applicants is also pending. In the circumstances, if the respondent is allowed to deal with the suit properties the same will affect the rights of the applicants herein. Hence, an application in O.A.No.89 of 2011 and O.A.No.289 of 2011 were filed seeking the above said reliefs. (e) The respondent/plaintiff on receipt of the notice in the interim injunction application has started to interfere with the applicants' possession in the suit item No.2 of the property. The respondent/plaintiff admitting the applicants possession in the suit item Nos. 1 and 2 of the property had sought recovery of possession in the suit has now taken a contra stand as though he is in possession of the suit item Nos.1 and 2 of the property. The respondent/plaintiff had filed the counter in O.A.No.89 of 2011 alleging that he had taken possession of the suit property on 25.08.2010 without any basis. Since the suit property is a vacant property the respondent/plaintiff taking advantage of the same is now trying to put up a super structure over the property and to create third party right over the same. Unless the respondent/plaintiff is restrained by an order of interim injunction from interfering with the applicants' peaceful possession and enjoyment of the suit properties, the applicants will be put irreparable loss and hardship. 4. The contentions of respondent/plaintiff as follows:- The applicants are the defendants 1 to 5 in the suit. The averments in para 2 of the affidavit is the repetition of the allegation stated in their common counter affidavit filed in O.A.No.528,529 of 2006 and written statement giving a twist to suit the same for the present convenience. In order to protract the final disposal of the suit, the applicants/defendants have filed this joint application for injunction in respect of three separate suit properties. The applicants have come forward with the present application which is devoid of merits on facts. The defendants 1 to 3 were served with suit summons on 19.05.2006 and defendants 4 and 5 were served on 04.06.2006. The defendants have filed vakalat in July 2006 but they did not show their bonafide by filing written statement in time. Unless the O.P. proceedings for the grant of letters of administration is ordered, the applicants/defendants 1 to 5 will not get any title to the property. He would further submit that the respondent and the defendants 6 and 7 are the owners of the property, after the death of Kanakavalli Ammal, as her heirs and therefore, there will not be any injunction against the true owners. The application is not maintainable in law and on facts. The applicants are not entitled to the discretionary relief of injunction in the facts and circumstances of the case. The applicants are also liable for suppression of material facts and abusing the process of law. Therefore, the respondent/plaintiff request the Court to dismiss the applications as devoid of merits with costs. 5. Heard Mrs.Chitra Sampath, learned counsel for the applicants and Mr.N.S.Nandakumar, learned counsel for the respondent/plaintiff. 6. The learned counsel for the applicants would submit in her argument that the suit was filed by the respondents seeking for declaratory relief that the suit properties belong to the plaintiffs and the defendants 6 and 7, for recovery of possession from the applicants/defendants 1 to 5 and for costs. She would further submit in her argument that the claim of the respondent was that he was the son of one Mr.R.Balasubramanian. The said Mr.R.Balasubramanian was the son of Mr.V.Ramasamy Naidu through his 1st wife and the said Ramasamy Naidu was already dead leaving him, the 2nd wife Kanakavalli and the respondent. The 2nd wife kanakavalli also died without any issues and therefore, the property belonged to Kanakavalli Ammal devolved upon the said P.Balasubramanian as the heir of her husband V.Ramasamy Naidu and thus, the plaintiff and the defendants 6 and 7 are entitled to the suit properties and for consequential possession. She would also submit that the defendants 1 to 5 (applicants herein) are the sons and daughters of the deceased brother of the said Kanakavalli Ammal and the property has been bequeathed by the said Kanakavalli Ammal in their favour and they have also filed O.P.No.743 of 2010 for the grant of letters of administration of the Will executed by Kanakavalli Ammal on 19.12.2003 and the same is pending in which the respondent is also cited as 1st respondent. She would further submit in her argument that the right over the said property is yet to be declared in the present suit and the truth and genuineness of the Will is also to be decided in the O.P. and in the meanwhile, taking advantage of the suit properties lying vacant, the respondent had taken law in his own hands and he is attempting to put up construction in the said property even though he had asked for recovery of possession through Court. She would further submit in her argument that the respondent is also seeking to alienate the properties to third parties and thereby to cause confusion in respect of the right over the properties. She would further submit that the act of the respondent or the statement made by him that he has assumed possession of the suit properties lying vacant, where a suit for recovery of the suit property is pending, amounting to contempt of Court and if for any reason the respondent is put up construction in the suit properties or he is alienating the suit properties during the midst of adjudication of the suit, it would intervene the rights of third parties and the applicants will be prejudiced much when especially the O.P.No.743 of 2010 is pending adjudication in which the respondent is also a party. She would therefore, request the Court that the respondent be restrained by an order of injunction not to alienate or encumber the properties and also from putting up any construction in the suit properties. She would also submit that the balance of convenience is also in favour of the applicants and the status quo passed by this Court on 22.03.2011 may be made absolute, by granting an order of interim injunction till the disposal of the suit. 7. The learned counsel for the respondent would submit in his argument that the applicants/defendants 1 to 5 have filed application seeking interim injunction in the suit filed by the respondent and if there is any cause of action for getting any order of interim injunction that should have been filed and agitated separately and not in this suit. He would further submit in his argument that since the applicants had abandoned the properties and on a visit by the respondent to the said property he found the abandoned conditions and therefore, took possession of the properties and appointed one care taker on and from 25.08.2010. He would further submit in his argument in view of the land development, the respondent was adviced to amend the relief sought for in the suit and therefore, no injunction could be ordered against the respondent/plaintiff in a suit filed by him. He would also submit in his argument that unless the O.P. proceedings for the grant of letters of administration is ordered, the applicants/defendants 1 to 5 will not get any title to the property. He would further submit that the respondent and the defendants 6 and 7 are the owners of the property, after the death of Kanakavalli Ammal, as her heirs and therefore, there will not be any injunction against the true owners. He would therefore, request the Court to dismiss both the applications as not maintainable. 8. I have given anxious considerations to the arguments advanced on either side. 9. The suit was filed by the respondent as plaintiff for the following reliefs:- "(i) to declare the plaintiff and defendants 6 and 7 are jointly entitled to the suit schedule properties. (ii) to direct the defendants 1 to 5 jointly and severally to deliver possession of the Items1 and 2 of the suit schedule immovable properties to the plaintiff and defendants 6 and 7. (iii) to direct the defendants 2 and 3 jointly and severally to deliver the items 4 to 10 of the suit schedule movable properties to the plaintiff and defendants 6 and 7. (iv) to direct the defendants 2 and 3 to render true and proper accounts for amounts, assets and deposits with accrued interest and profits standing in the name of the deceased R.Kanakavalli Ammal individually or in the joint names of Kanakavalli Ammal with 3rd defendant or others in banks, mills, companies, institutions and with debtors, or any other person or in any source and to deliver the assets/instruments and/or to pay the amount in cash with banker's quarterly rests till date of payment to the plaintiff and defendants 6 and 7. (v) to grant permanent injunction restraining the defendants 1 to 5 or their agents, representatives or any body claiming through them or acting on behalf of them jointly and severally in any way including relying on the Will dated 19.12.2003 of Kanakavalli Ammal from encumbering, alienating or dealing with Items 1 to 3 of suit schedule properties. (vi) to direct the defendants 1 to 5 to pay the costs of the suit to the plaintiff." 10. The relief was sought for by the respondent/plaintiff on behalf of the defendants 6 and 7 also. Admittedly, the suit properties are stated to have been in possession of the defendants 1 to 5 and therefore, the respondent/plaintiff had sought for recovery of possession in consequence to the declaratory relief sought for by him. The submission of the respondent in his counter as well as in the arguments of his counsel was that the respondent had visited the suit properties and found they are abandoned and therefore, he took possession of the suit properties on 25.08.2010 cannot be accepted, since the respondent/plaintiff has to obtain permission from the Court for such taking possession as it was found abandoned. Admittedly, the plaint relief has not been amended for permanent injunction. But, it is still lying as to its original prayer namely recovery of possession. The pleadings stated in the plaint would categorically admit that the defendants 1 to 5 are in possession of the suit properties. That being so, the suo-motu taking possession is not at all allowable in law when the suit is pending before this Court. Therefore, I am of the considered view that the applicants are deemed to be in possession and enjoyment of the suit properties as on date of the suit. The possession of the applicant shall not be disturbed till the disposal of the suit. The alleged taking of possession on 25.08.2010 by the respondent in any way change the character and the circumstances of the case already filed by him. This Court on an earlier occasion dated 22.03.2010 has passed an order of status quo to be maintained by the respondent and that the respondent was claiming to get possession of the suit properties even though the case was pending for recovery of possession before this Court. In the said circumstance, I find that the possession of the applicant in respect of the suit properties cannot be disturbed by the respondent except due process of law or through the order of the Court. In such circumstances, the alleged taking of possession on 25.08.2010 is not lawful but illegal. The applicants are deemed to have been in possession and enjoyment of the suit properties on the date of the suit and during the pendency of the suit. Therefore, the prima facie case is only in favour of the applicants and not in favour of the respondent. If for any reason, the applicants are disturbed by the respondent by putting up any construction in the suit property or alienating or encumbering the property to third parties the third parties right will be intervened and the rights of parties to the suit will be seriously affected. Therefore, I could see that the balance of convenience is also in favour of the applicants. There will not be any prejudice caused to the respondent if an order of interim injunction is granted against him, in respect of selling or encumbering the property during the pendency of the suit or to put up any construction in the suit properties. If the respondent is permitted to do so, it will entirely change the character of the property and there would be a likelihood of defeating the orders passed by this Court. 11. In the said circumstances, I am of the considered view that the applicants are entitled to the reliefs sought for in both the applications. The status quo order passed by this Court on 22.03.2011 is made absolute. 12. With the aforesaid observations, both the applications are ordered. 20.09.2011 ssn Indes:Yes/No Internet:Yes/No V.PERIYA KARUPPIAH, J., ssn Pre-delivery order made in O.A.Nos.289 and A.No.89 of 2011 in C.S.No.289 of 2006 20.09.2011