JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 13.03.2008 made in A.S.No.4 of 2008 on the file of the Sub-ordinate Judge, Pollachi, modifying the judgment and decree dated 24.08.2007 made in O.S.No.395 of 2001 on the file of the District Munsif Court, Pollachi.)

(Heard through video conferencing)

1. This Second Appeal is directed against the Judgment and Decree dated 13.03.2008 passed in A.S.No.4 of 2008 by the Sub-ordinate Judge, Pollachi, modifying the Judgment and Decree dated 24.08.2007 passed in O.S.No.395 of 2001 by the District Munsif Court, Pollachi.

2. The Plaintiff is the Appellant herein.

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

The suit property is situated at V. Kaliyapuram Village, Pollachi Taluk; it is the absolute property of the plaintiff and he is in peaceful possession and enjoyment of the suit property; the defendant, who has his property on the eastern side had tried to encroach the suit property and remove the survey stones; hence, the plaintiff has filed the suit for permanent injunction.

3.1 The defendant has filed his written statement by stating that he has purchased his portion in S.F.No.518/C by virtue of a sale deed; since the plaintiff approached the defendant to sell away his property and for which, the defendant refused; enraged over this, the plaintiff has made false allegations and filed this suit; it is further alleged that the lands of the plaintiff and the defendant is irrigated through a common water channel running in the lands of the plaintiff and the defendant; taking advantage of the same, the plaintiff had started to make boundary disputes and hence, the suit has to be dismissed.

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

1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

2. To what other relief?

5. During the course of the trial, on the side of the plaintiff, four witnesses were examined as P.W.1 to P.W.4 and Exs.A1 to A8 were marked. On the side of the defendant, one witness was examined as D.W.1 and Exs.B1 to B7 were marked. Commissioner's report and plan were marked as Exs.C1 to C5.

6. At the conclusion of the trial, the trial Court decreed the suit in favour of the plaintiff. Hence, the defendant preferred the First Appeal before the Subordinate Court, Pollachi. The First Appeal was partly allowed and the decree was modified to the extent of 1 acre 31 cents in S.F.No.518/C and as shown in Ex.C5 Surveyor's sketch. Aggrieved over that, the plaintiff has filed this Second Appeal and the Second Appeal has been admitted on the following questions of law:-

“(i) Whether the Lower Appellate Court was right in exceeding the frame of the suit and deciding the right of the parties and their entitlement on the basis of report of an Advocate Commissioner without adjudicating the question of possession when the suit is for bare injunction?

(ii) Whether the Lower Court can grant injunction based on the Advocate Commissioner's report is silent as to possession and enjoyment of the property and also possession cannot be established by the Advocate Commissioner's report?”

7. The appellant and respondent are close relatives. The appellant is the sister's son of the defendant and they have their properties adjacent to each other. Both the appellant and the respondent have purchased their lands from the descendants of common ancestors, who owned the entire extent of the land in S.F.No.518/C. By virtue of a partition deed effected on 21.10.1978 between the three brothers viz., Subburaya Mudaliyar, Lakshmana Mudaliyar and Palanivel Mudaliyar (who were the original owners of the suit property), the suit property was allotted to the share of Palanivel Mudaliyar and from whom the appellant had purchased 1 acre 31 cents in S.F.No.518/C through Ex.A1 – sale deed. The partition deed has been marked as Ex.A6 on the side of the appellant/plaintiff and Ex.B1 on