In an interlocutory application for injunction, the plaintiffs must establish prima facie possession of the suit properties. A decree in a partition suit is not vitiated by mere allegations of fraud or collusion. Delivery of possession in execution proceedings is valid unless set aside by a competent court. Appointment of a Commissioner to note physical features is not justified when there is no dispute regarding possession.

Srinivasan, J.

1. These appeals arise out of inter-locutory applications in two suits O.S.Nos.1566 and 1567 of 1994 on the original side of this Court. O.S.A.No.305 of 1995 is against O.A.No.1074 of 1994 in C.S.No.1567 of 1994. O.S.A.Nos.306 and 307 of 1995 are against O.A.Nos. 1075 and 6154 of 1994 respectively in C.S.No. 1566 of 1994. The parties will be referred to hereinafter by their rank in the suits.

2. C.S.No.1566 of 1994 is for declaration that the plaintiffs are the absolute owners of the schedule mentioned properties and for consequential injunction restraining the first defendant and his agents etc., from in any manner interfering with the possession and enjoyment of the schedule mentioned properties. The subject matter of the suit comprises three items of dry land of an extent of 2.56 acres in Survey No.10/2, 3.76 acres in Survey No.41 and 1.40 acres in Survey No.43/1, taking a total of 7.72 acres in Thandalkalani village. Saidapet Taluk, Chengai M.G.R.District. Items 2 and 3 of the said properties were purchased on 5.12.1975 by the first plaintiff from the second defendant who is the father of the first defendant. Item No.1 was purchased on 28.9.1979 by the first plaintiff from the second defendant. By a deed dated 9.12.1983, the President of the first plaintiff Sangam created the second plaintiff Trust. The administration of the Trust is governed by a scheme framed by the District Court, Chingleput in O.S.No.145 of 1987. The plaintiffs purchased several other properties adjacent to the suit properties and erected superstructures thereon, though admittedly the suit properties remained vacant lands. According to the plaintiffs, the entire properties of an extent of 35.50 acres belonging to them are enclosed by a fence with a gate for having access. It is the case of the plaintiffs that they are in possession and enjoyment of the said properties including the suit properties.

3. In C.S.No. 1567 of 1994, the prayer is for declaring the title of the plaintiff to the suit property viz., dry land of an extent of 2.04 acres in Survey No. 19 in Tandalkalani Village, Ponneri Taluk, Chengai M.G.R. District and for consequential injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff. According to the plaintiff, the property was purchased from the second defendant under sale deed dated 19.3.1979. The plaintiff claims to have raised eucalyptus trees by enclosing the land with fence.

4. It should be noted that defendants 1 and 2 in both the suits are the same persons being the son and the father. In C.S.No.1567 of 1994, the plaintiff filed O.A.No.1074 of 1994 for injunction restraining the defendants from interfering with the plaintiff’s possession pending disposal of the suit. In the other suit, the plaintiffs filed O.A.No.1075 of 1994 for a similar relief of injunction and O.A.No.6154 of 1994 for appointment of Advocate- Commissioner to make local inspection of the suit properties f or noting the physical features and the features of possession.

5. The defence in short raised by the defendants in both the suits is that the properties involved in these two suits were ancestral family properties belonging to the first defendant and his father, the second defendant. The first defendant filed C.S.No.130 of 1979 on the file of this Court on 28.2.1979 for partition and separate possession of one half share in the properties set out in the schedule thereto which included the present suit properties. The second defendant in the present suit was the first defendant in that suit. According to the first defendant herein, the third defendant in that suit is the first plaintiff in C.S.No.1566 of 1994. Defendants 1 and 3 in the said suit received summons therein and remained ex parte. A preliminary decree was passed on merits on 4.1.1984. The first defendant, who was a minor at the time of the institution of the said suit represented by his mother after attaining majority got him