In a suit for permanent injunction, the plaintiff must establish lawful possession and may need to sue for declaration of title if the title is under dispute.

JUDGMENT

(Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.49 of 1994 dated 28.07.1995 on the file of the Sub Court, Kancheepuram confirming the judgment and decree made in O.S.No.88 of 1984 dated 30.11.1993 on the file of the Additional District Munsif Court, Kancheepuram.)

1. The plaintiff in O.S.No.88 of 1984 on the file of the Additional District Munsif Court, Kancheepuram is the appellant herein.

2. O.S.No.88 of 1984 had been filed by the plaintiff, Ghewarchan Jain @ C.G.Jain against the defendant, Arputha Mary seeking permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff of the plaint schedule property or in the alternate, to grant mandatory injunction directing the defendant to remove the compound wall as shown in the report of the Commissioner from the property of the plaintiff and also to remove the newly constructed Madras terraced roof portion and hut portion and the encroachment by way of masonary construction in the front road abutting the portion of the plaintiff as stated in the report of the Advocate Commissioner and also for costs of the suit.

3. By judgment dated 30.11.1993, the Suit was dismissed with costs.

4. The plaintiff then filed A.S.No.49 of 1994 before the Sub Court at Kancheepuram. By judgment dated 28.07.1995, the Appeal Suit was dismissed with costs.

5. The plaintiff, then filed the present Second Appeal. The Second Appeal had been admitted on 23.02.1996, on the following substantial question of law:

“1. Whether the courts below have failed to call to their aid, the principle laid down in Section 95 of the Indian Evidence Act, for the purpose of interpretation to the made of Exs.A1, B2 and A15?”

O.S.No.88 of 1984 (Additional District Munsif Court, Kancheepuram):-

6. In the plaint in O.S.No.88 of 1984, the plaintiff stated that the property described in the schedule was purchased by him from K.M.Ibrahim Ravuthar for Rs.10,500/- on 12.10.1977 under a registered sale deed. He claimed to be in possession. The property was vacant site. He claimed that the total area was 24 cents. The plaintiff further stated that to the east of the property there was further vacant land which originally belonged to Dhanraj Juguraj Bermacha Trust, represented by Managing Trustee, A.D.Geerchand.

7. The plaintiff further stated that the defendant had purchased the said property to the east of the plaint schedule property by a registered sale deed dated 28.02.1983 for Rs.17,000/- from the trust. It was claimed that the defendant had not taken possession of the property. It was stated that the defendant dug up a pit for constructing a compound wall. The plaintiff advised the defendant not to do so. It was stated that the compound wall of the plaintiff was partly demolished by the defendant. It was under those circumstances that the suit was originally filed for permanent injunction and later, since after filing of the suit, the defendant had put up a wall, amended seeking the relief of mandatory injunction to remove the wall.

8. In the written statement, the averments in the plaint were denied. It was stated that there was no compound wall belonging to the plaintiff. There was no cause of action for filing of the suit. It was stated that the defendant had purchased 0.40 cents in S.No.356 and it was surveyed as S.No.356/2B in Sandavellore Village. It was stated that immediately to the western side of the property purchased by the defendant, the vendor of the plaintiff, Ismail and others were the owners of an extent of 8 x 200 feet of land abutting the road. The defendant claimed that she had also purchased that portion by a sale deed dated 02.04.1982 for Rs.2000/- and she was in possession. The defendant had taken possession of her property, even before the sale deed executed by the trust. The defendant claimed that the plaintiff had executed an unregistered agreement of sale with respect to 36 cents out of 72 cents i