JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 17.07.2003 passed in A.S.No.23 of 2003 on the file of the District Court, Nilgiris at Udagamandalam confirming the judgment and decree dated 07.02.2003 passed in O.S.No.34 of 1997 on the file of the District Munsif Court, Kotagiri.)

1. This second appeal is directed as against the judgment and decree dated 17.07.2003 passed in A.S.No.23 of 2003 on the file of the District Court, Nilgiris at Udagamandalam, confirming the judgment and decree dated 07.02.2003 passed in O.S.No.34 of 1997 on the file of the District Munsif Court, Kotagiri.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.

3. The case of the plaintiff in brief is as follows :-

3.1. The suit is filed for permanent injunction. The suit property belongs to Kinna Bellie, Pela Ajjan, Keme Iyyan, Kutta Dhonan and Kuttu Hiriyan and in the partition effected among themselves each of them entitled to 0.09 acres. The said Keme Iyyan had two sons viz., Sevanan and Morchan. After the demise of the said Keme Iyyan, his share of 0.09 acres was partitioned between his two sons Sevanan and Morchan and each of them entitled to get 0.04½ acres. The said Sevanan purchased an extent of 0.09 acres in the same survey number from Pela Ajjan and hence he became entitle for 0.13½ acres. The said Sevanan died leaving behind three sons viz., Bella Gowder, Bellie Gowder and Nanja Gowder and they were divided the property equally and each of them got 4½ cents. Nanja Gowder had two sons viz., K.N.Ajjan & K.N.Joghee and by mutual arrangement, the entire 4½ cents came to K.N.Joghee and he was in possession and after his death, the plaintiff is in possession and enjoyment of the property as his sole representative. While being so, the defendants, who are the legal heirs of the said Bella Gowder and Belli Gowder, are attempted to interfere with her possession and enjoyment and hence, the plaintiff filed this present suit.

4. Resisting the case of the plaintiff, the defendants 1 & 2 and 5 to 9 contended that the suit property has not been sub-divided so far and unless the suit property is divided by mets and bounds, the co-owners are entitled for their respective shares. The possession of the plaintiff is denied and she suppressed the fact that Bella and Bellie names were also found in the chitta extract. The plaintiff is not only entitled for the share of the late K.N.Joghee but the legal heirs of the late Bella Gowder and Belli Gowder are also entitled for their share. Therefore, the plaintiff is not entitled for any relief as sought for by her and the suit is liable to be dismissed.

5. In support of the plaintiff’s case, she herself examined as P.W.1 and two documents were marked as Ex.A.1 and Ex.A.2. On behalf of the defendants, the first defendant was examined as D.W.1 and Ex.B.1 to Ex.B.3 were marked. The Advocate Commissioner’s report and Sketch were marked as Ex.C.1 and Ex.C.2.

6. On considering the oral and documentary evidence adduced by the parties and the submission made by the learned counsel on either side, the Courts below dismissed the suit filed by the plaintiff for injunction. Challenging the same, the plaintiff preferred an appeal suit and the same was also dismissed by confirming the judgment and decree of the trial Court. Aggrieved over the same, the plaintiff has come up with the present second appeal.

7. At the time of admission, the following substantial questions of law were framed by this Court:-

1. Whether the Courts below are justified in not considering the recital in Ex.B.3 placed before it in a proper perspective?

2. Whether the Courts below have overlooked the admission of D.W.1 in his evidence that he has been in separate possession and enjoyment of 2½ cents under Ex.B.3?

8. The learned counsel appearing for the appellant would submit that out of five shares, the legal heirs of Bella Gowder, Bellie Gowde