A co-owner's entitlement to seek permanent injunction based on established title, possession, and enjoyment, even in the absence of exclusive possession, when the defendant fails to prove her claim.

JUDGMENT :

(Prayer: The second appeal has been filed under Section 100 of C.P.C. against the judgment and decree dated 01.08.2008 passed in A.S.No.29 of 2007 on the file of the Subordinate Court, Mannargudi, reversing the judgment and decree dated 14.09.2007 passed in O.S.No.247 of 2005 on the file of the District Munsif Court, Mannargudi).

1. Challenge in this second appeal is made to the judgment and decree dated 01.08.2008 passed in A.S.No.29 of 2007 on the file of the Subordinate Court, Mannargudi, reversing the judgment and decree dated 14.09.2007 passed in O.S.No.247 of 2005 on the file of the District Munsif Court, Mannargudi.

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

3. The defendant in O.S.No.247 of 2005 is the appellant in this second appeal.

4. Suit for permanent injunction.

5. Briefly stated, the case of the plaintiff is that the suit property and the other properties belong to the plaintiff's family ancestrally and by way of the document No.695/60 dated 05.04.1960, the suit property and the other properties had been allotted to the plaintiff as 'C' schedule and it is only the plaintiff, who has been enjoying the suit property by paying kist. Though the patta stands in the name of the plaintiff's mother and the patta for the suit survey number has been jointly issued in favour of the plaintiff's mother, the plaintiff and one Natarajan and the plaintiff has been enjoying the suit property as described in the plaint by raising coconut and teak trees and the defendant has no manner of right, title, possession and enjoyment of the suit property and he is a total stranger and taking advantage of the plaintiff's living at a distance from the suit property, endeavored to disturb the plaintiff's possession and enjoyment of the suit property one way or other and in that connection, the police complaint has also been lodged and as the defendant acts persisted, according to the plaintiff, the suit has been laid for appropriate relief.

6. The defendant resisted the plaintiff's suit contending that the claim of the plaintiff that the suit property has been in his possession and enjoyment following the document dated 05.04.1960 as 'C' schedule is incorrect and considering the property involved in O.S.No.79 of 2003 laid by the plaintiff's sister, the suit property is not mentioned and when the case of the plaintiff that the joint patta had been issued in respect of the suit survey number, his case that he is in the exclusive possession and enjoyment of the suit property is untenable and the suit property is in the possession and enjoyment of the defendant and it is only the defendant, who has been enjoying the coconut and teak trees available in the suit property and the plaintiff has not placed any document to evidence that he has a valid title to the suit property and therefore, according to the defendant, the plaintiff has not entitled to secure the relief prayed for and the suit is liable to be dismissed.

7. In support of the plaintiff's case, PWs1 & 2 were examined and Exs.A1 to A6 were marked. On the side of the defendant, DWs1 & 2 were examined and no documentary evidence has been marked.

8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions put forth, the trial Court was pleased to dismiss the plaintiff's suit. On appeal by the plaintiff, the first appellate Court, on an appreciation of the materials available, both oral and documentary and the submissions put forth by the respective parties, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff, decreed the suit in favour of the plaintiff as prayed for. Impugning the judgment and decree of the first appellate Court, the second appeal has been preferred by the defendant.

9. At the time of admission of the second appeal, the following substantial questions of law were formulated for consider