Grant of decree for permanent injunction without adjudicating title not proper.

The defendant in O S. No. 103 of 1976 on the file of the District Munsif of Kumbakonam is the appellant in teis second appeal. The respondent herein, is the plaintiff in the suit. The plaintiff laid the suit for a bare permanent injunction. The averments in the plaint proceeded on the basis that the property belongs to him ancestrally and even otherwise he has prescribed title to it by adverse possession. The defendant contested the suit by stating that he has purchased the suit property under the sale deed dated 5th June, 1961 from one Somu Samban, the maternal uncle of the plaintiff. The further case of the defendant is that his vendor Somu Samban was the exclusive owner of the suit property by virtue of his purchase under a sale deed dated 23rd June, 1948 from one G. Ramalingam. It is needless to point out that on the above contentions put forth by the parties, it is not possible to grant relief to the plaintiff with regard to the possession claimed by him without adjudicating the question as to whether the defendant has got title to the suit property or not. The first Court took up the question of possession alone and found, on as assessment of the materials placed in the case, that the defendant was in possession of the suit property on the date of the suit and hence the plaintiff is not entitled to the injunction as prayed for by him and accordingly dismissed the suit. The plaintiff appealed and the lower appellate Court chose to come to a different conclusion on the question of possession and holding that the plaintiff was is possession and the defendant was not in possession, allowed the appeal with costs and decreed the suit of the plaintiff as prayed for with costs. Hence the second appeal by the defendant.

2. As the time of admission of the second appeal, the following substantial question of law was mooted out for consideration.

“Whether it was open to the lower appellate Court to grant an injunction is regard to vacant site when the plaintiff had not proved his title to the said site?.”

Mr. Ananthasivam, learned counsel appearing for the appellant would submit that the lower appellate Court has not given any finding upholding either the title of the plaintiff or negativing the title of the defendant and on the only finding which finding is again being impeached by the learned counsel for the appellant that the plaintiff is in possession, the lower appellate Court has chosen to decree the suit of the plaintiff. The learned counsel further submits that there must be a rinding by the lower appellate Court that the plaintiff has title to the suit property either by deed or by prescription of the same by adverse possession and if the plaintiff wants to succeed in obtaining a decree for permanent injunction on the sole ground of his possession, there must be a further finding that the defendant is not the lawful owner of the suit property as claimed by him.

3. Nobody can dispute the general principle that a person in peaceful possession is entitled to be maintained in possession against all but the true owner and the suit by such a person for an injunction against any other person threatening to dispossess him is maintainable and there could be an investigation of his cause and relief granted if there is a warrant for it on facts. As pointed out by the Supreme Court in M. Kallappa Setty v. M.V. Lakshminarayana Rao1, the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. The propriety of protecting the possession of the plaintiff, who has failed to establish his title, when the defendant's plea of title has been rejected, came up for consideration before Gokulakrishnan, J., in Mohammed Sulaiman v. Mohideen Thambi2, and the learned Judge found, that in that case both the Courts below concurrently found that the defendants have neither title to nor possession of the suit properties and in the said circumstances when the plaintif