IMPORTANT POINT
A suit for injunction must include a declaration of rights; otherwise, it is not maintainable.

JUDGMENT :

(S. Sounthar, J.) :

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.44 of 2006, dated 8.2.2007, on the file of Sub-Court, Ambasamudram reversing the judgment and decree made in O.S.No.57 of 2003, dated 29.11.2005, on the file of Additional District Munsif Court, Ambasamudram.)

The Second Appeal is directed against the judgment and decree made in A.S.No.44 of 2006, dated 8.2.2007, on the file of Sub-Court, Ambasamudram reversing the judgment and decree made in O.S.No.57 of 2003, dated 29.11.2005, on the file of Additional District Munsif Court, Ambasamudram.

2. The Plaintiff in the suit is the appellant. The suit was for bare injunction. The suit was decreed by the trial Court. The First Appellate Court reversed the findings of the trial Court and the suit was dismissed. Aggrieved by the same, the plaintiff is before this Court.

3. According to the plaintiff, suit property originally belonged to one Gomathi Ammal and she gifted the suit property to her daughter Lakshmi on 26.6.1963.The said Lakshmi sold the suit property to one Kalyani on 5.3.1987. The plaintiff purchased the said property from Kalyani on 8.5.2002 and has been in possession and enjoyment of the same. According to the plaintiff, he purchased the absolute right in the first schedule of the suit property and 1/6th share in the second schedule of the suit property. It was also asserted by the plaintiff that he had been using the second schedule of the suit property as a pathway to have the access to the property purchased under the first schedule.

4. The defendant attempted to interfere with his right of user over the second schedule as an access to the first schedule property and hence, the plaintiff was constrained to file a suit for injunction restraining the defendant from interferring with his right and user of the second schedule property as an access to the first schedule property.

5. The defendant filed a written statement denying the right as well as the possession of the plaintiff over the suit property. According to the defendant, the suit property originally belonged to one Adhivaragan Achari and he purchased the property under sale deed, dated 20.03.1969. It was claimed by the defendant that Adhivaragan Achari had two sons and four daughters and the entire suit property was allotted to the share of one Kannan in the oral partition. The said Kannan mortgaged the suit property to one Velu on 23.6.1999.Thereafter he sold the suit property to the defendant on 20.5.2002. The defendant also specifically denied the claim of the plaintiff that he purchased the suit property. Thus the right and title of the plaintiff over the suit property was denied by the defendant and on these pleadings, the defendant sought for the dismissal of the suit.

6. Before the trial Court, the plaintiff was examined as P.W.1 and his vendor was examined as P.W.2. On behalf of the plaintiff, four documents were marked as Ex.A1 to Ex.A4. The defendant was examined as D.W.1 and four documents were marked on hehalf of the defendant as Ex.B1 to Ex.B4.

7. The trial Court, on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff was entitled to the relief as prayed for and decreed the suit. Aggrieved by the same, the defendant preferred an appeal in A.S.No.44 of 2006, on the file of Sub-Court, Ambasamudram. The First Appellate Court, on reappreciation of evidence available on record, came to the conclusion that the gift as pleaded by the plaintiff in favour of predecessor Lakshmi was not at all proved by examining the attestor to the document. The First Appellate Court also rejected Ex.A1 relied on by the plaintiff on the ground that the plaintiff failed to produce the original gift deed and hence presumption available in favour of old documents could not be attached to the certified copies. The First Appellate Court also came to the conclusion that the suit for bare injuntion without