O.A.Nos.871 and 872 of 2010 in C.S.No.703 of 2010 VINOD K. SHARMA,J. The plaintiff / applicant filed a suit for declaration that he is the absolute and lawful owner of the suit property, as detailed in the schedule A to the plaint. The plaintiff also prays for declaration that settlement deed dated 25.09.2009, registered vide Doc.No.3265 of 2009 in the office of the Sub Registrar, Anna Nagar, executed by the defendant no.1 in favour of 5th defendant in respect of Schedule 'B' property forming part of 'A' schedule property is illegal, invalid and nonest in the eye of law, consequently not binding on the rights of the plaintiff. 2. Prayer is also for issuance of mandatory injunction, directing the 1st defendant to execute a deed of cancellation of the settlement deed. The plaintiff is also prayed for permanent injunction, restraining 1st and 5th defendants from interfering with the plaintiff's peaceful possession and enjoyment of suit schedule 'A' property and also for a permanent injunction restraining 5th defendant or anyone authorized by him, alienating the suit 'B' schedule mentioned property by way of sale, mortgage, charge, lease, joint development or any other conveyance detrimental to the rights of the plaintiff. 3. The pleaded case of the plaintiff is that he is the son of G.Rathanchand, who was married to Sayar Bai. Out of wedlock, three sons and two daughters were born. G.Rathanchand was in the business of pawn brokering and real estate. The suit property was alloted to T.M.Somasundaram Pillai by the Corporation of Chennai, who in turn sold it to G.Rathanchand, father of the plaintiff on 25.09.1953. G.Rathanchand executed a registered Will dated 23.03.1981, bequeathing the property to his last son R.Narendrakumar, the plaintiff herein, as absolute owner. It was mentioned in the Will that two other sons and two daughters shall not have any right in respect of suit mentioned property. 4. After execution of the Will, G.Rathanchand executed a registered settlement deed dated 03.06.1983, wherein reference to the Will was also made. After settlement deed was executed, the plaintiff applied to the Chennai Water Supply and Sewerage Board and Electricity Board for mutation of names entered into Municipal record and the record of Sewerage Board. He also applied for transfer of patta in his name. 5. The plaintiff also mortgaged the property in favour of The Egmore Benefit Society Limited on 18.08.1990 and the mortgage was subsequently discharged on 01.07.1997. The plaintiff claims to be living in the suit property along with his family member. He is also having three phase power supply provided based on settlement deed i.e. 03.06.1983. The plaintiff is exercising his ownership right over the property. 6. It is the case of the plaintiff that defendant no.1, has no right or title in the property, which stood transferred to the plaintiff under the Settlement Deed dated 03.06.1983. The defendant no.1 tried to create fraudulently settlement deed in favour of his son M.Parveenkumar, the 5th defendant herein by way of registered settlement deed dated 25.09.2009. The deed is said to be illegal, invalid and nonest in the eye of law, as defendant has no right over the property. 7. The plaintiff submits that he has prima facie case, being owner and in possession of the property. The balance of convenience is also in favour of the plaintiff / applicant. Furthermore, he is likely to suffer irreparable loss and injury, if the injunction is not granted as prayed for. 8. It is the case of the non applicant that defendants have filed a suit for partition in the City Civil Court, Chennai, which is pending in the Court of XVIII Assistant Judge, City Civil Court, Chennai, where the defense raised is the same, which is raised in this suit i.e. that the plaintiff is owner under settlement deed. 9. On the pleadings referred to above, learned counsel for the plaintiff prays for the grant of injunction as prayed for in his favour. 10. The defendant no.1, on the other hand, claims to be another son of late G.Rathanchand, who was said to be kartha of Hindu family, and in management of ancestral property of the family. It is the case of defendant that G.Rathanchand had decided to partition the family property within family members and vide partition deed executed by G.Rathanchand on 16.12.1965, which was duly registered with SRO, Saidapet, the suit property was divided into three portions, out of which one share was retained by the father, and two other shares were allotted to R.Madanchand and R.Narendrakumar. 11. It is the case of non applicant that after allotment of shares to the defendant no.1 and plaintiff, the property was with father to protect the rights of minors. 12. It is the case of the defendant that the property was partitioned into three portions. The kartha of family is said to have died on 27.11.1997, and at that time, all the immovable, cash etc have also been retained by the plaintiff. The defendant therefore is claiming share in the property on the ground that it was actually the property of his father. 13. The pleadings of the parties, referred to above, show that the plaintiff is in possession of the property under deed of settlement. The stand of the defendant / non applicant is based on the suit for partition filed in the City Civil Court, but in the pleadings, it is mentioned that the property was already partitioned. 14. Learned counsel for the plaintiff, in order to protect the plaintiff's settled possession, has placed reliance on the judgment of the Hon'ble Supreme Court in the case of East India Hotels Ltd. vs. Syndicate Bank, 1992 Supp(2) SCC 29, wherein the Hon'ble Supreme Court was pleased to lay down that even the trespassers in settled possession cannot be dispossessed except with due process of law. Reliance was also placed by the plaintiff / applicant on the judgment of the Hon'ble Supreme Court in the case of Gujarat Bottling Co. Ltd and Others vs. Coca Cola Co. and others, (1995) 5 SCC 545, wherein the Hon'ble Supreme Court was pleased to lay down that for grant of interlocutory injunction, the balance of convenience is to be seen and being an equitable relief, parties seeking injunction can also be directed to file an undertaking to compensate the other party in case the matter is finally decided in his favour. 15. The Hon'ble Supreme Court again in the case of Rame Gowda (Dead) By Lrs. vs. M.Varadappa Naidu (Dead) By Lrs. and another, (2004) 1 SCC 769, was pleased to lay down that occupant in settled possession cannot be dispossessed without recourse to law. There can be no dispute with the proposition of law laid down, as it is now well settled law that parties in established possession cannot be dispossessed except by due process of law. 16. In the case in hand, the plaintiff has proved on record the registered settlement deed executed by his father, who was admittedly the owner of the property, though claimed to be karta of property by the defendants. VINOD K. SHARMA,J. ar 17. The plaintiff is thus able to prove prima facie case. It is not disputed that the plaintiff is in possession of the property, therefore, is entitled to protect his possession and cannot be dispossessed except with due process of law. 18. Consequently, the applications, as prayed for by the plaintiff, are ordered, as prayed for. No costs. 19. It is made clear that any observation made herein above, be not taken to be final expression of opinion on the merit of controversy between the parties, as the findings are only for disposal of interim applications. 13.12.2011 Index: Yes Internet: Yes ar Pre-Delivery order in O.A.Nos.871 and 872 of 2010 in C.S.No.703 of 2010