JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the learned Subordinate Judge, Kuzhithurai in A.S.No.153 of 1998, dated 20.11.2003 pursuant to the judgment and decree dated 22.09.1998 in O.S.No.281 of 1992 on the file of the Principal District Munsif, Kuzhithurai).

1. Aggrieved over the concurrent findings of the Courts below, decreeing the suit filed for permanent injunction, the present Second Appeal is filed.

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

3. The brief fact, leading to file this Second Appeal, reads as follows:

The first defendant is the brother of the plaintiff and the second defendant is the wife of the first defendant. The suit property is originally belonged to the mother of the plaintiff viz., Gnanamma. The said Gnanamma executed a sale deed dated 24.11.1983 in favour of the plaintiff. The plaintiff is in possession and enjoyment of the suit schedule property. However, on 20.05.1992, the defendants tried to trespass into the suit schedule property. Hence, the suit.

4. Denying the allegations in the plaint, it is the contention of the defendants in the written statement that the sale deed, dated 24.11.1983, executed in favour of the plaintiff is a fraudulent document and the mother of the plaintiff and the first defendant have never executed such document. Further in the written statement, it is stated that the defendants are residing in the building, which is situated in the suit schedule property and these facts are suppressed by the plaintiff. Hence, disputed the plaintiff's claim.

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

i) Whether the plaintiff has possession and enjoyment over the suit schedule property?

ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

iii) Whether the suit is maintainable? And

iv) To what other reliefs, the plaintiff is entitled?

6. On the side of the plaintiff, she himself was examined as P.W.1 and Exs.A1 to A8 were marked. On the side of the defendants, second defendant was examined as D.W.1. However, no document was marked. The trial Court, taking note of the title in favour of the plaintiff and also the revenue records and the house tax receipts filed by the plaintiff, concluded that the plaintiff is in possession over the suit property and granted injunction. As against which, the defendants have filed an appeal suit before the Sub-Court, Kuzhithurai. Before the first appellate Court, the defendants have filed five documents and the same were marked as Ex.B1 to B5 and contended that the Family Card for the year 1998-2003 stands in the name of the first defendant. Besides, suit property also mortgaged in favour of one Padmanaban and his wife viz., Rosammal has made over the suit property to the first defendant under Ex.B2. The first appellate Court, taking note of the fact that the defendants have filed those documents only for the purpose of this case and only after the evidence was adduced by the D.W.1, as early as on 09.09.1997, the Family Card was obtained by the defendants in the year 1988 and further the alleged made over deed was not proved the possession of the defendants, confirmed the decree and judgment of the trial Court. As against which, the present second appeal is filed.

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

“i) Whether the suit as framed is maintainable in law?

ii) Even though the defendants disputed the title of the plaintiff and contended that the defendants were in physical possession of the property, the plaintiff did not amend the plaint to seek the relief of declaration of title and recovery of possession. In such circumstance, whether the decree for injunction granted by the lower Court is sustainable in law.”

8. The learned counsel appearing for the appellants would submit that the appellants have established their possession over