The need for concrete evidence to establish possession and the importance of considering physical features and documentary evidence in property disputes.

JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the decree and judgment in A.S.No.6 of 2011 passed by Additional District Judge, (Fast Track Court) No.1, Thoothukudi, dated 18.06.2011 reversing the decree and judgment in O.S.No.70 of 2006 passed by the District Munsif Sathankulam, dated 25.03.2009.)

1. Aggrieved over the judgment of the first Appellate Court, reversing the findings of the trial Court, the present second appeal is filed.

2. The parties are referred to as per their rank before the trial Court.

3. The brief facts, leading to file this Second Appeal, are as follows:-

It is the case of the plaintiff that the suit property belonged to the ancestress of the plaintiff and they were in possession and enjoyment from more than 100 years. The father of the plaintiff viz., Thirumal Nadar inherited the same and in peaceful possession and enjoyment of the same till his death. After his death, the property was enjoyed by his wife and his daughters, as legal heirs of the said Thirumal Nadar. Thereafter, in the year 1990, as per the oral partition, the schedule property was allotted to the share of the plaintiff. From that onwards, the plaintiff is in the peaceful possession and enjoyment of the suit property. The plaintiff has constructed a small hut in the suit property and residing there. The plaintiff is regularly paying the house tax, bearing old No.2/126-B and the new No.2/127. The defendant herein is an utter stranger to the property trying to interfere with the peaceful possession and enjoyment of the suit property. Hence, the suit.

4. The contention of the defendant is that the suit property is a natham land. The boundaries given in the suit property is not correct. The total extent of Survey Nos.860/26 and 860/28 is 1 acre and the same is belonging to the Hindu Nadar Community, wherein temples were situated. The plaintiff has no right whatsoever in the suit property, except a small hut put up by her in the northern side and she is not in possession of the entire suit property. The plaintiff has encroached the northern portion of the suit property and other vacant area of the suit property is in possession of the defendant. Hence, prays for dismissal of the suit.

5. The trial Court, based on the above pleadings, framed the following issues:

(1) Whether the plaintiff has proved her possession and title to the property?

(2) Whether there is no cause of action for filing the suit?

(3) Whether the suit is bad for non joinder of necessary parties?

(4) Whether the plaintiff is entitled for permanent injunction as prayed for?

(5) To what other reliefs, the plaintiff is entitled?

6. On the side of the plaintiff, P.W.1 to P.W.3 were examined and Ex.A1 to A4 were marked. On the side of the defendant, D.W.1 and D.W.2 were examined and no exhibits were marked. Ex.C1 and Ex.C2 were marked on the side of the Court.

7. Based on the evidence and materials, the trial Court dismissed the suit, whereas the appellate Court reversed the findings of the trial Court and granted permanent injunction. As against which, the present second appeal is filed.

8. While admitting the Second Appeal, the following substantial questions of law have been framed:-

(a) Whether the first Appellate Court is wrong in allowing the appeal without considering about non impleadment of Temple in the party array even though Court decided the cause of action on the basis of construction material heaped at the Temple premises? And

(b) The Court failed to presume under Section 114 of Evidence Act about the possession of plaint schedule property by the Temple, because of the physical features regarding existence of the plaint schedule property inside the compound wall of the Temple?

9. The learned counsel appearing for the appellant submitted that except a small hut in the northern side, other area of the suit property is under the control of the Temple Trust and the defendant is only managing the temple properties and the plaintiff