The appellant, plaintiff in O.S. No. 526 of 1998 on the file of the I Additional District Munsif, Kallakurichi, who sued for declaration of title to the suit property and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property, has filed this Second Appeal challenging the judgment and decree dated 25.7.2005 passed by the First Appellate Court in A.S. No.80 of 2003 wherein and by which the judgment and decree dated 31.12.2002 made in O.S. No.526 of 1998 on the file of the I Additional District Munsif, Kallakurichi, was confirmed thereby dismissing the First Appeal at the instance of the defendants.

2. The plaintiff’s case was that the suit properties are the common family properties also belonging to the first defendant, who is none else than his father and though they have been in enjoyment of the same, pursuant to a Panchayat, it was divided among themselves through an oral partition. Accordingly, item Nos. 1 to 6, 8 and 9 of the suit properties were allotted to the plaintiff while item No. 7 of the property was allotted to the first defendant, who, according to the plaintiff, on 14.8.1989, gave possession of the same to the plaintiff through a Gift Settlement Deed. Since then the plaintiff has been in absolute enjoyment and possession of the property by paying Government tax. It is the further case of the plaintiff that though the defendants have no right over the suit properties, due to enmity, they have denied his right by creating false documents and obstructed his peaceful enjoyment since 01.6.1998. Hence, the suit.

3. The defence of the defendants was that the plaintiff does not have complete enjoyment and possession of the suit properties and that the same were enjoyed by the plaintiff and the defendants jointly. According to the defendants, no settlement was effected in respect of the 7th item of the property, which is a well and that in order to obtain service connection for the well situated in 7th item, settlement was meant to be effected in respect of the well. It is further stated by the defendants that the plaintiff has wrongly included the entire property and that due to family compulsion, item Nos. 2 to 5 were sold on 01.4.1998 to the second defendant which sale will bind the plaintiff. On these grounds, the defendants sought for dismissal of the suit.

4. Before the trial Court, on the above pleadings, the parties took oral and documentary evidence. The plaintiff examined himself and marked Exs. A.1 to A.8. On the side of the respondents / defendants, no witness was examined and no document was marked.

5. Trial Court, after evaluating entire evidence, finding that the plaintiff has not proved possession and title in respect of item Nos. 1 to 6, 8 and 9 of the suit properties, held that he is not entitled to any decree of declaration and dismissed the suit. In respect of item No. 7 of the suit schedule, the trial Court decreed the suit holding that the plaintiff has proved his possession. The defendants took the matter on appeal in A.S. No. 80 of 2003 on the file of the Subordinate Judge, Kallakurichi, and the Lower Appellate Court confirmed the finding of the trial Court and dismissed the Appeal. It is against the said judgment, the Second Appeal is preferred at the instance of the plaintiff.

6. When the Second Appeal was listed for admission, notice alone was issued on 23.6.2006. The following substantial questions of law that arise for consideration in this Second Appeal:-

(i) Whether the Courts below are right in dismissing the suit in respect of suit items 1-6, 8 and 9 when the appellant’s right to those properties as a sharer is not disputed?

(ii) When it is found that the first defendant had allegedly sold items 2 – 5 on 01.4.1978 (documents not exhibited) in favour of the second defendant, are not the Courts below bound to extend the equitable relief of injunction?

7. Heard Mr. V. Raghavachari, learned counsel appearing for the