JUDGMENT.-The defendant is the appellant. The plaintiff, who is running an elementary school on the suit property, filed a suit against the defendant for an injunction restraining him from interfering with his possession and enjoyment. The site, on which there is said to be a school building, was classified as Government poramboke or natham land. The plaintiff claimed that he and his predecessor-in-title had been in occupation for over 7O years. The defence was that the suit property belonged to the defendant and that under a licence granted by his father, the plaintiff was running the school in the property. The defendant relied on a partition of 1918, in which this property was dealt with by his family. The defendant’s case was that the plaintiff was not entitled to the relief claimed.

2. The trial Court took the view that neither the plaintiff nor the defendant had established title to the suit property. It, however, granted an injunction, as the plaintiff was in possession. The learned Subordinate Judge to whom the respondent appealed, held, on the basis of Exhibits B-3 to B-7, a partition-deed and certain other sale-deeds, in which in the description of boundaries, the present property was referred to as the defendant’s property, that the predecessor-in-title of the defendant had dealt with the suit property as their own, though it was natham land. He also held, on the basis of possession, that the suit for an injunction had to be decreed. Hence the present second appeal by the defendant.

3. The learned counsel for the appellant, who lost in both the Courts, submitted that the learned appellate judge having found that the appellant and his prodecessor-in-title had treated the property as their own, should not have granted an injunction in favour of the plaintiff who had no title to the suit property. He further contended that the plaintiff was in the position of a trespasser on his own showing and that a trespasser could not seek to hold his possession against the lawful owner. For the respondent the submission was that the defendant had filed a title suit subsquently in which the question of title would have to be gone into. He, therefore, submitted that the lower Courts did not act wrongly in granting the injunction, so that the injunction, could continue till the disposal of the title suit.

4. The learned counsel for the appellant brought to my notice the decision in Govindaraj v. Kandasamy Goundar1. It is to support the proposition that the plaintiff cannot change his case and rely on the defendant’s stand. In the present case, I am not satisfied that the plaintiff is trying to change his case. The plaintiff relies on his own possession for the purpose of getting the relief of injunction. I am, therefore, not satisfied that the decision in Govindaraj v. Kandasamy Goundar1has any application.

5. The learned counsel then submitted that a party cannot change his case in appeal. This has reference to the reliance on the licence, pleaded by the defendant, in support of the plaintiff’s right of injunction. For this purpose counsel relied on a decision of the Supreme Court in Chayalier, I.I. Iyyappon and another v. The Dharmodayam Company1. The relevant passage occurs at page 94. Kapur, J., pointed out that it was not open to a party to change his case at the appellate stage. Here also, I am not satisfied that the plaintiff is trying to change his case at this stage. No doubt, he relies on the permission that was granted by the father of the defendant. This is only as a kind of shield to support his case of possession. In a case like this where the suit is for an injunction based on possession, it has been held by the Supreme Court in N.S.S. Ltd. v, K.C. Alexandar2and also in Teshwant Singh v. Jagdish Singh3that the plaintiff need not prove title. Therefore the question of title is not relevant for the purpose of considering the eligibility for the injunction prayed for by the plaintiff. In view of the fact that the question of

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