The burden of proof in establishing possession and the factum and mode of partition, the discretion of the appellate court in disturbing trial court's findings, and the primary consideration of possession in a suit for permanent injunction.

This Second Appeal arises out of the judgment and decree dated 19. 2006 passed in A.S.No.3 of 2006 by the Principal Sub Judge, Myiladuthurai reversing the Judgment and Decree dated 19. 2005 passed in O.S.No.302/2004 by the District Munsif, Sirkali and thereby decreeing Plaintiffs suit for Permanent Injunction. Unsuccessful Defendant is the Appellant.

2. Suit property relates to a vacant Punjai land measuring about 5 cents in S.No.281/4B1 in Pudupattinam Village, Sirkali Taluk. The case of Respondent /Plaintiff is that the suit property measuring 5 cents was allotted to Plaintiffs father Muthusamy Thevar and his brothers. After the death of his father, Plaintiff has been in possession and enjoyment of the same. Suit property is described as ABCD in the plaint plan. Defendant is having property on the south of suit property and he is having brick kiln in his property and using the portion marked as EPGH in the plaint plan to take away the Bricks. Defendant demanded the Plaintiff to sell the suit property namely the portion marked as ABCD. Since, Plaintiff did not heed to his request, Defendant threatened to disturb Plaintiffs possession and hence Plaintiff filed the suit for permanent injunction restraining the Defendant or his men from illegally encroaching into the suit property and interfering with the peaceful possession and enjoyment of the Plaintiff in any manner.

3. Admitting that the suit property originally belonged to Plaintiffs grand father Neelamegam, Defendant filed written statement contending that Neelamegam had only one son by name Ponnian alias said Ponnusamy and the Ponnusamy inherited the suit property on the death of Neelamegam. According to Defendant his wife Kalyani purchased the suit property under Ex.B1-sale deed on 24.06.1993 from Ponnusamy and his son Veerapandian and therefore, Defendant and his wife are in possession and enjoyment of the suit property. It is averred that except Ponnusamy and his wife Kalyani, no one has got any right, title or interest in the suit property. It is further averred that the suit is bad for non-joinder of necessary party viz. Kalyani, wife of Defendant.

4. On the above pleadings, seven Issues were framed in the trial Court. Plaintiff examined himself as PW1 and one Gangamirdam was examined as PW2 and Shanmugam, brother of Plaintiff was examined as PW3. Exhibits A1 to A4 were marked on the side of Plaintiff. Defendant himself examined as DW1 and one Kannaian and Kuppusamy were examined as DWs.2 and 3 respectively. On the side of Defendant, Ex.B1-sale deed was marked.

5. Upon consideration of oral and documentary evidence, trial Court held that Plaintiff failed to prove possession of the suit property on the date of filing of the suit and failed to adduce evidence as to the date and place of oral partition and how legal heirs of Muthusamy Thevar viz., Plaintiff and his brothers got the suit property. Trial Court also held that property was purchased under Ex.B1 sale deed [26. 1993] in the name of Defendants wife Kalyani and that suit is bad for non-joinder of necessary party and on those findings, dismissed Plaintiffs suit.

6. Aggrieved by the dismissal of suit, Plaintiff filed A.S.No.3/2006 before Principal Subordinate Judge, Myiladuthurai. In the lower Appellate Court, Application in I.A.No.65/2006 – Or.41,R.27 CPC was filed and allowed and Ex.A3-Adangal and Ex.A4-FMB sketch were marked. In the lower Appellate Court, Advocate-Commissioner was appointed and Advocate-Commissioners report and plan were marked as Exs.C1 to C3. Observing that each sons of Neelamegam would have got only 5 cents from the suit Survey No.281/4B1, lower Appellate Court held that Ponnusamy one of the son of Neelamegam could have had right only over 5 cents and that he could not have validly sold 10 cents under Ex.B1 sale deed. Lower Appellate Court further held that Ex.A3-Adangal would show joint possession of the Plaintiff and on those findings, reversed the Judgment of the trial Court