Possession on date of suit as well as prima facie right over property must be considered by court.

(Second appeal against the judgment and decree dated 31.08.1995 made in A.S.No.175 of 1994 on the file of IV Additional Judge, City Civil Court, Madras confirming the judgment and decree dated 23.11.1993 made O.S.No.2891 of 1990 on the file of VII Assistant City Civil Court at Madras.)

The plaintiff, who has lost his case before both the Courts below, is the appellant herein.

2. The plaintiff filed the suit O.S.No.2891 of 1990 on the file of VII Assistant Judge, City Civil Court, Chennai against the defendants, who are none other than his brothers and sister, for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the suit property.

3. The facts which are relevant for the disposal of the second appeal are as follows:- The plaintiff has purchased the suit land on 14.06.1969 under Ex.A.1 – Sale Deed. Admittedly, at the time of the said purchase, the plaintiff was unemployed. It is also not in dispute that the plaintiff got employment only in the year 1980 and he was appointed as Kalasi in the Southern Railway. On 17.12.1967, the father of the parties died and later on, their mother also died on 18.10.1999. It is the case of the plaintiff that the defendants had forcibly obtained the signature of the plaintiff in Exs.A.13 and A.14 viz., partition deed and agreement respectively. Hence, he gave a complaint to the police under Ex.A.17 on 14.03.1990. Admittedly, no action was taken on the said complaint given by the plaintiff against the defendants. Alleging interference by the defendants, the suit had been instituted for permanent injunction.

4. The case of the defendants is that the plaintiff had no source of income at the time when the land was purchased under Ex.A.1 on 14.09.1969. The father of the parties was the only earning member and he had purchased the same by paying the sale price in instalments, in the name of the plaintiff, since the plaintiff was the only major son as well as eldest among other sons and daughter. It is also the case of the defendants that after purchase of the land, they have sold some of the ancestral properties under Exs.B.9 to B.11 – sale deeds, dated 13.05.1974, 03.05.1974 and 15.04.1974 respectively and utilised the sale consideration for construction of the building, which was constructed in the land purchased under Ex.A.1. It is the further case of the defendants that they have paid the instalments payable to the Society, where the land under Ex.A.1 was purchased.

5. Before the trial Court, the plaintiff examined himself as P.W.1 and one Chandrasekaran as P.W.2 and marked Exs.A.1 to A.43. On the side of the defendants, the first defendant was examined as D.W.1 and one Seetharaman was examined as D.W.2 and Exs.B.1 to B.25 were marked.

6. Considering the oral and documentary evidence adduced by both parties, the trial Court dismissed the suit, against which, the plaintiff filed A.S.No.175 of 1994 and First Appellate Court also dismissed the appeal confirming the judgment and decree of the trial Court. Hence, the second appeal.

7. Learned counsel appearing for the plaintiff/appellant has submitted that though so many documents were produced by the defendants/respondents to show that they have made contributions to construct the building in the suit mentioned property, it is the plaintiff/appellant, who has mortgaged the property on 02.09.1989 under Ex.A.11 and the amount was invested for the construction of the building; that the plaintiff/appellant has let out the building to tenants, which is evident from Exs.A.8 and A.9 and he has been receiving the rents from them, which aspect was not considered by the trial Court.

8. Learned counsel appearing for the defendants/respondents submitted that the plaintiff/appellant had no source of income to purchase the land and considering the fact that he was the eldest son and attained majority at that time, Ex.A.1 – sale deed was registered in his name. However, the amount payable for the purchase of the