Possession over property not a bar for getting decree of injunction.

Srinivasan, J.

1. Though the question involved-in the appeal has turned out to be one within a narrow cumpass, the litigation has had a chequered career spreading over a period of 16 years, the seeds whereof were sown even 12 years prior to its commencement.

2. The suit properties admittedly belonged to Bysani Markandayalu Chetti, who died on 26th October, 193, leaving his widow Kamaiammal, who died on 16th September, 1969. The plaintiff claims to be an adopted daughter of the said Markandeyalu Chetti, whereas the defendant claims to be his adopted son. The defendant's adoption is said to have taken place two months prior to the death of Markandeyalu Chetti. Soon after the death of Markandeyalu Chetti, there were suit between the defendant and Kamaiammal which ended ultimately in a compromise by which the properties were divided among the two. The present suit properties fell to the share of Kamaiammal. After her death, the plaintiff claiming to have perfected her title by continuous possession and enjoyment of the suit properties, has filed the present suit for declaration that she is in possession of the properties and for a permanent injunction restraining the defendant from interfering with her possession. Though originally the plaint contained several allegations regarding the status of the defendant, they were later deleted and the amended plaint as it stands, now, does not make any reference to the claim of the defendant as the adopted son of Markandeyalu Chetti but merely describes the defendant as a third party who can have no manner of claim over the suit properties. Curiously, a recital is found in paragraph 5 of the plaint, that the defendant had lost all his rights to make claims to the suit properties by reason of the plaintiff's continuous and uninterrupted possession and enjoyment of the same. The suit was filed on 19th August, 1970, within a year after the death of Kamaiammal, widow of Markandeyalu Chetti. The plaintiff does not make it clear as to how the plaintiff claims to have perfected her title by continuous possession and enjoyment of the suit properties within a period of one year from the date of the death of Kamaiammal. It is nowhere stated in the plaint that the plaintiff was the only heir to Markandeyalu Chetti and that on the death of Markandeyalu Chetti, Kamaiammal was not entitled to succeed to the estate of Markandeyalu Chetti. On the other had, there is an express averment in paragraph-3 of the plaint that Kamaiammal and the plaintiff succeeded to the estate of Markandeyalu Chetti, each getting an equal share therein. Whatever might be the basis of the claim of title on the part of the plaintiff, the relief that she had prayed for in the plaint was only one of declaration of her possession and injunction against the defendant.

3. The defendant contended in his written statement that the plaintiff was not the adopted daughter of Markandeyalu Chetti or Kamalammal and on the other hand, he was adopted by Markandeyalu Chetti on 16th August, 1937. The defendant also referred to a registered deed of adoption of even date and claimed that on the death of Markandeyalu Chetti, himself and Kamalammal, became entitled to the estate and after the death of Kamalammal he was exclusively entitled to all the properties. It was also contended by him that in the suit between him and Kamalammal, his right as adopted son was upheld and that the present suit properties were allotted to Kamalammal for her enjoyment. The written statement also made a reference to a suit filed by Kamalammal in 1958 as against the present plaintiff wherein a decree was passed against the plaintiff herein for delivery of possession of the suit properties to Kamalammal. The plaintiff filed a reply statement denying the averments in the written statement.

4. The trial Court by its judgment dated 9th January, 1975 negatived the claim of the plaintiff that she was the adopted daughter of Markandeyalu Chetti and found that the defendant