The admissibility of recitals in documents not inter partes and their impact on the possession of the plaintiff.

The plaintiff in the trial Court is the appellant in the second appeal. The suit filed by the plaintiff for injunction in respect of a vacant house site to an extent of 1147½ sq.ft admeasuring 13 ½ feet in the North-South and 85 feet in the East-West bounded on the North by the site of the defendants 1 and 2, on the south by the site of the third defendant, on the East by the Channel and on the West by the common pathway and the open space Vasal for the beneficial use and enjoyment of the plaintiff and his wife and the defendants 1 and 2 comprised in Gramanatham Survey No.96 of Thirisoolam Village, Madras.

2. The case of the plaintiff is that he has purchased the suit property under the sale deed dated 110. 1982 and he is in possession of the same and before his purchase his brothers were in possession and the defendants 1 and 2 have attempted to encroach upon the northern side of the plaintiffs property and the third defendant has attempted to encroach upon the southern side, which was prevented by the Public.

3. The defendants however denied any right to the plaintiff in respect of the passage as well as open space and the defendants are in possession of the property which belonged to them. That apart, it is the case of the defendants that the document dated 010. 1982 had been fraudulently created.

4. Considering the fact that the defendants in I.A.No.3093 of 1990 in the above said suit by way of an affidavit admitted the plaintiffs possession and on that basis, finding that both the plaintiff and defendants are in enjoyment of Grama Natham and therefore there cannot be any patta or payment of kist and accepting Ex.A1 and Ex.A2 filed on behalf of the plaintiff decreed the suit in favour of the plaintiff, as against which, the defendants have filed the first appeal and rejecting the document relied upon by the plaintiff under Ex.A1 which is unregistered sale deed but relying upon Ex.B10 and Ex.B11 stated to have been effected much before Ex.A1, the appellate Court has allowed the appeal thereby dismissing the suit. As against which the plaintiff has filed the second appeal.

.5. While admitting the second appeal, the following substantial question of law is framed;

."Whether the recital in Ex.B10 and Ex.B11 are binding on the plaintiff who is not a party to the said documents?"

.6. As correctly pointed out by the learned counsel for the appellant, in a suit for injunction, the point to be considered is as to whether the plaintiff who claims to be in possession has proved or not on his own merits and not on the demerits of the defendants. It is with that basic principle the trial Court has considered Ex.A1 sale deed even though the same is not a registered one stating that since the plaintiffs predecessors have been in possession, there was no necessity for registration and given a finding that the plaintiff was in possession. Therefore, the trial Court has held that there was no necessity for declaration of title and also considering the admission made by the defendants in the affidavit which forms part of the suit in an Interlocutory Application admitting the possession of the plaintiff and also clearly given a finding that the Ex.B10 and Ex.B11 are not situated in the suit property marked as ABCD and therefore granted the decree of injunction. On the other hand, the appellate Court even though has made a reference about Ex.A1 and also stating the various contents of Ex.A1 has not chosen to decide anything about the possession as pleaded by the plaintiff but has chosen to rely upon the Ex.B10 and Ex.B11 to come to the conclusion that the plaintiff is not in possession of the disputed portion of the suit property. It is also relevant to point out that admittedly the vendor of Ex.B10 has not been examined and in such circumstances any contents of Ex.B10 and Ex.B11 to which the plaintiff is not a party cannot be put against the plaintiff to deny his right of continuous possession.

7. The learned counsel for t