To obtain an injunction, the plaintiff must establish entitlement to the right on the date of filing the suit, including possession and legitimate right to the property.

Ms. R. BANUMATHI, J.

1. This Second Appeal is directed against the judgment of Lower Appellate Court dated 23.11.2006 in A.S. No. 90 of 2006 on the file of Principal Subordinate Judge, Mayiladuthurai, reversing the judgment of trial Court dated 26.4.2006 in O.S. No. 371 of 2005 on the file of Principal District Munsif, Mayiladuthurai, and thereby granting declaration to the respondent/plaintiff that he is entitled to construct the dilapidated building and granting permanent injunction against the Appellants/defendants.

2. The Suit property belongs to a Madam created by one Abirami Ammaiyar, who died on 16.10.1944. The said Abirami Ammaiyar, was alleged to have executed a Will dated 5.3.1936 in favour of one Annamalai Pillai. After the death of Annamalai Pillai, the Madam was alleged to be managed by the male heirs of Annamalai Pillai’s family. After the death of Annamalai Pillai, his wife and thereafter, appellants/defendants are in management of Madam.

3. Case of respondent/plaintiff is that after the death of Annamalai Pillai, plaintiff is a tenant of the suit property and he has been paying the monthly rent of Rs. 300/- to third defendant and that the superstructure over the suit property was in a dilapidated condition. Respondent’s further case is that the Suit property was given to him on “Paguthi” (Lease) basis, with permission to put up construction. According to respondent, by putting up superstructure, he was doing business in the name and style “Murugan Automobiles” and he had got electricity service connection in his name. Stating that he is in possession of the Suit property, respondent/plaintiff has filed the Suit for declaration that he is entitled to construct the dilapidated building and to do business and also for permanent injunction.

5. Appellants/defendants resisted the Suit inter alia contending that the Suit property was not given to the respondent on “Paguthi” 3 basis and that the plaintiff was the tenant under the defendants and that he was no longer in possession of the Suit property. One Muthukumar was in possession of the Suit property. Respondent/ plaintiff was not regular in payment of rents and he was no longer in possession of the Suit property and therefore, plaintiff is not entitled to the Suit reiiefs.

6. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, trial Court held that the property was given to the plaintiff only as the tenant and the plaintiff cannot seek injunction against the true owner. Trial Court further held that the plaintiff has not proved to be in possession of the Suit property and on those findings dismissed plaintiffs Suit.

7. In the Appeal preferred by the plaintiff, Lower Appellate Court held that defendants have not proved that property was surrendered by the plaintiff to Muthukumar and Lower Appellate Court faulted the defendants for not examining the said Muthukumar. Observing that when surrender has not been proved by defendants, Lower Appellate Court took the view that plaintiffs possession must be presumed and the Lower Appellate Court allowed the Appeal reversing the judgment of the trial Court.

8. At the time of admission, the following substantial questions of law were formulated for consideration in the Second Appeal:

a) Is the Lower Appellate Court correct in law in granting the relief of permanent injunction, after rightly rejecting the relief of declaration on the ground that the Mutt is not made a party?

b) When the respondent is admittedly not in possession of the Suit property on the date of the Suit, whether he is entitled to the relief of permanent injunction?

c) Whether the Lower Appellate Court is correct in law in granting decree for permanent injunction by picking holes in the defence raised by the appellants?

d) In the absence of any evidence regarding the cause of action alleged in plaint, whether the First Appellate Court is justified in granting the Suit relief?

e) Whether the Lower Appellate Co