IMPORTANT POINT
Possession must be assessed by the court based on evidence, not merely on the findings of an Advocate Commissioner.

JUDGMENT :

S.SOUNTHAR, J.

PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 28.07.2004, passed in A.S.No.280 of 2003 on the file of II Additional Sub-Court, Madurai, confirming the judgment and decree, dated 16.10.2003, passed in O.S.No.133 of 2003 on the file of District Munsif Court, Tirumangalam.

The plaintiff in the suit is the appellant. The suit was originally filed for bare injunction. The suit was dismissed by the trial Court. The appeal filed by the plaintiff was also dismissed. Aggrieved by the same, he has come by way of this Second Appeal.

2. According to the appellant/plaintiff, the suit property was purchased by him under a registered sale deed, dated 09.04.2003, executed by its previous owner Pappuammal. The plaintiff had been in possession and enjoyment of the suit property from the date of purchase, by paying property tax to Panchayat. The defendant wanted to purchase the suit property from the plaintiff at a lower rate. Aggrieved by the purchase of the suit property by the plaintiff, the defendant made an attempt to interfere with the plaintiff's possession and enjoyment. Hence, the plaintiff was constrained to file the suit for bare injunction.

3. The defendant filed a written statement, denying the title as well as possession of the plaintiff over the suit property. The defendant denied the sale in favour of the plaintiff, dated 09.04.2003, executed by Pappuammal. It was the case of the defendant that his wife – Angammal was in possession and enjoyment of the suit property by virtue of an oral sale agreement with Pappuammal. It was also claimed that Pappuammal borrowed a sum of Rs. 1,200/- from one Krishnan Servai based on a pronote, dated 10.06.1982, and, on the same day, she executed a 'Kudiuppu Receipt' in favour of Krishnan Servai, allowing him to enter the suit property for three years in lieu of interest for the sum borrowed by her. The debt was discharged by the defendant's wife – Angammal and, thereafter, she had been in possession and enjoyment of the same by paying tax to Panchayat. The allegation in the plaint as if tax assessment stood in the name of the plaintiff was also denied. The defendant also denied the title of Pappuammal to execute the sale deed in favour of the plaintiff. Thus, by denying the title as well as possession over the suit property, the defendant sought for dismissal of the suit.

4. Before the trial Court, the plaintiff was examined as P.W.1, the vendor of the plaintiff was examined as P.W.2, and the Advocate Commissioner was examined as P.W.3. On behalf of the plaintiff, 4 documents were marked as Exs.A-1 to A-4. The defendant was examined as D.W.1 and four other witnesses were examined as D.Ws.2 to 5. 8 documents were marked on the side of the defendant as Exs.B-1 to B-8. Advocate Commissioner's Report and Sketch were marked as Exs.C-1 and C-2.

5. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the suit for bare injunction filed by the plaintiff was not maintainable and consequently, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.280 of 2003 on the file of II Additional Sub-Court, Madurai. The first appellate Court came to the conclusion that prior possession of the plaintiff's vendor was proved and to that extent the title of the plaintiff had to be upheld. However, the first appellate Court also affirmed that the plaintiff failed to prove his possession over the suit property and hence dismissed the suit. Aggrieved by the same, the plaintiff has come by way of this Second Appeal.

6. At the time of admission, this Court formulated the following substantial questions of law, by an order, dated 24.11.2004 :

(1) Whether in law has not the lower appellate Court after finding that the plaintiff/appellant has better title and prior possession is good title vide 2004/3 LW 143, erred in finding that since the Commis