The possession of a trespasser cannot be protected and injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner.

1. Plaintiffs are the appellants. They filed suit O.S. No. 1273/80 before the District Munsif of Poonamallee for a permanent injunction restraining the respondent from interfering with their possession and enjoyment of the suit property except by due process of law. Their case was that the property originally belonged to one Munuswami Mudaliar, that the first appellant was his legally wedded wife and other appellants were their children, that the respondent was the daughter of the first wife of the said Munuswami Mudaliiar, that the said Munuswami Mudaliar was living with the appellant in the A Schedule house till his death in the year 1974, that after his death, the appellant continued to live there, that the respondent claiming the whole of the A schedule property under a registered settlement deed dated 203.1950 sent a notice dated 20.4.1974 calling upon the appellants to quit and deliver vacant possession, that the appellants resisted the claim of the respondents title, to the whole of A schedule property and claimed title in themselves in respect of the entire property, that the respondent though entitled to claim title and recovery of possession of the whole A Schedule property, omitted the whole of A schedule property in order to avoid payment of Court fee and chose to file a suit O.S. No. 1519/74 against the appellants in respect of only a portion of A schedule and the suit was decreed, that under the guise of executing the decree for possession of B Schedule holding threats for the last two weeks to dispossess the appellants from the rest of the A schedule, namely, C and D schedule and that the suit was therefore necessitated.

2. The respondent resisted the suit contending inter alia follows:

The suit property was her absolute property that the first appellant became a tenant under late Munuswami Mudaliar and was paying the rent at the rate of Rs. 20/- per month during his life time. She caused a notice to be issued to the appellants and the appellants claimed” absolute title and therefore the respondent filed suit in respect of the property in her possession in O.S. No. 1519/74 and in that suit it was held that the settlement deed in her favour was true and valid and she was absolutely entitled to the entirety of the present A schedule property and when pursuant to the decree in her favour, she had taken execution, the suit came to be filed. The appellants had no right to question the title of the respondent once again since the same was barred under Section 11 of the Code of Civil Procedure. She was the lawful owner of the A schedule and the appellants did not have any right over the same. Even assuming that the appellants were in possession of the property, it was unlawful and such possession could not be protected.

3. The trial Court accepted the case of the appellants and decreed the suit holding that the respondent could not disturb the possession of the appellants except by due process of law. The respondent filed appeal A.S. No. 7/84 before the Subordinate Judge of Chengalpat by his judgment and decree dated 29.6.1984 reversed the decision of the trial court, allowed the appeal and dismissed the suit. Aggrieved, the present Second Appeal has been filed.

4. At the time of admission, the following substantial question of law was framed for decision in the Second Appeal.

“Whether the lower appellate Court can reverse the judgment and decree of the trial court without reversing the finding rendered by the trial Court.”

5. It is contended by the learned Counsel for the appellants that the appellants were in possession and their possession was a matter of admission by the respondent and such possession must be protected notwithstanding the character of the possession. It is to be immediately noticed that the appellants claimed absolute title, to the A schedule property in the prior proceedings. It was held in the prior proceedings that the first appellant was not the legally wedded wife of Munuswamy Mudaliar