The validity of a Will and the plaintiff's possession and enjoyment of the property were crucial in determining the entitlement to seek bare injunction without declaration of title.

JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 13.02.2009 passed in A.S.No.15 of 2007 on the file of the Sub Court, Kallakurichi confirming the judgment and decree dated 26.10.2006 passed in O.S.No.418 of 2003 before the II Additional District Munsif Court, Kallakurichi.)

(The case has been heard through Video Conferencing)

This Second Appeal is directed against the concurrent finding of the Courts below allowing the suit filed by the respondent herein for permanent injunction against the appellants herein.

2. Brief facts of the case is that the suit schedule property, which is a tiled house and vacant site appertain to it more fully described as items 1 and 2 in the plaint schedule, has been claimed by the plaintiff as his ancestral property, which he inherited through his maternal grandmother Jaidoon Bee, who had executed a Will dated 11.06.1998 in favour of the plaintiff and died on 03.01.1999. The plaintiff has been in possession and enjoyment of the house and vacant site appertain on the south of the tiled house. The respondents/appellants are trying to trespass into the land and house. Hence, suit filed for permanent injunction restraining the defendants from interfering with his peaceful possession of the suit property.

3. In the written statement, the appellants have questioned the validity of the Will executed by Jaidoon Bee in favour of the plaintiff. The existence of tiled house in the 1st item of the property and the possession and enjoyment of the 2nd item of the property, which is a vacant site, denied.

4. Before the trial Court, the plaintiff and one Bakiaraj were examined as PW-1 and PW-2 respectively. In support of the plaintiff case, Will dated 11.06.1998, Rough patta under the Natham Scheme, House Tax receipts, Electricity Bill and Previous Sale Deeds with respect to the suit property were marked as Exs.A1 to A6. On behalf of the defendants, the 2nd defendant and one Raji were examined as DW1 and DW2. Objection letter given by the defendants regarding rough patta issued in favour of the plaintiff and the proceedings in connection with the objection are marked as Exs.B1 to B3. In the course of the trial, an Advocate Commissioner was appointed. His report and sketch marked as Exs.C1 and C2.

5. The trial Court, taking note of the fact that the 2nd defendant in the cross examination had conceded the title of the plaintiff in respect of the 1st item of the suit where the house is located, but objecting the grant of Natham patta issued in favour of the plaintiff, had allowed the suit. The first appellate Court, on re~appreciation of evidence, has confirmed the trial Court-s judgment and decree.

6. In the second appeal, the learned counsel appearing for the appellants would submit that the Courts below ought not to have considered the Will marked as Ex.A1, which was not proved in the manner known to law. Further, when there is a dispute regarding the title, bare injunction suit is not maintainable, without seeking declaration of title. Further, pointing out the fact that the plaintiff being Muslim woman, can bequeath only 1/3rd of her property, the Will bequeathed the entire property is invalid and Ex.A1 has no evidentiary value. No title can pass through the Will.

7. Learned counsel appearing for the plaintiff would submit that there is no dispute between the heirs of Jaidoon Bee regarding the validity of the Will executed by her. After the demise of Jaidoon Bee in the year 1999, the property been in possession and enjoyment of the plaintiff and during the Natham Scheme, patta for the property been assigned to the plaintiff on 25.10.1995 and the same is marked as Ex.A2. Since then without any hindrance the plaintiff has been in enjoyment of the property. Therefore, the defendants, who have no right whatsoever, cannot try to trespass into the land of the plaintiff. The Courts below have rightly held in favour of the plaintiff based on th