JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Code of Civil Procedure to set aside the judgment and decree dated 29.06.2009 in A.S.No.33 of 2007 on the file of the Sub Court, Uthagamandalam confirming the decree and judgment dated 18.04.2005 in O.S.No.88 of 1997 on the file of the District Munsif’s Court, Coonoor.)

1. This Second Appeal is preferred against the judgment and decree dated 29.06.2009 passed by the learned Subordinate Judge, Uthagamandalam in A.S.No.33 of 2007.

2. The sixth defendant is the Appellant herein and the deceased first respondent was the plaintiff.

3. The averments made by the parties in brief:-

The plaintiff is the absolute owner of the land measuring 47 cents in R.S.No.201 of Jagathala Village and the property has got specific boundaries described in the suit schedule. He derived title by way of inheritance from his father late J.M.Ranga Gowder. The suit property was the ancestral property of the plaintiff and it was in the continuous enjoyment of the plaintiff and his ancestors for so many years. The plaintiff was cultivating the suit property by raising crops and he has produced the Chitta and Adangal extracts to show the same. On 28.02.1997 and 02.03.1997, the defendants who were strangers to the suit property attempted to trespass into the suit property by use of force and violence and the said attempt was resisted by the plaintiff. Since the defendants continued to disturb peaceful enjoyment of the plaintiff over the suit property, he has filed the suit for the relief of permanent injunction.

3.1 The defendants have filed the written statement by stating that the suit property belonged to one Joghee Gowder and he was in enjoyment of the same. After the lifetime of Joghee Gowder, his three sons Ajja Gowder, Madha Gowder and Kari Gowder inherited the same. One of the sons of Joghee Gowder, Kari Gowder had a son and two daughters and he died in the year 1904 leaving behind his wife and children as his legal heirs. One of the daughters by name Badikki Haliammal died in the year 1982 and her son also died in the year 1943. As the legal heir of her father Kari Gowder, Badikki Haliammal had inherited an undivided 1/3 right in 15 1/3 cents of the suit property. Badikki Haliammal died in the year 1982 and her husband predeceased her and their only son E.P.Lingan - 6th defendant/appellant had inherited the said 15 1/3 cents and his name has also been included in the revenue records. The son of Joghee Gowder by name Madha Gowder is also entitled to 15 1/3 cents and he sold 30 2/3 cents to one Bellie Gowder on 04.04.1934. Bellie Gowder sold the same to the first defendant on 08.04.1953. The first defendant had executed a sale deed in favour of the plaintiff and sold an extent of 23 ½ cents on 27.04.1953. So the plaintiff is entitled to only 23 ½ cents and not for 47 cents. Since the defendants are in enjoyment of the property, the plaintiff is not entitled for the relief as claimed for.

4. Basing on the pleadings, the trial Court has framed the following issues:-

“TAMIL”

5. During the course of the trial, on the side of the plaintiff, two witnesses were examined as P.W.1 & P.W.2 and Exs.A1 to A8 were marked. On the side of the defendants, two witnesses were examined as D.W.1 & D.W.2 and Exs.B1 to B3 were marked.

6. At the conclusion of the trial, the learned trial Judge has decreed the suit as prayed for. The defendants 6 & 7 have challenged the judgment and decree of the trial Court by way of preferring an appeal before the Sub Court, Udhagamandalam and the said appeal was also dismissed. Aggrieved over that, the 6th defendant has filed this Second Appeal and the Second Appeal has been admitted on the following substantial questions of law 1 and 2:-

1. When the title of the plaintiff to 0.24 acre in S.No.201 is disputed by the defendants and frame of bare suit for injunction is questioned, are the Court below right in decreeing the suit for bare injunction?

2. Are not the judgments of the Court b