IMPORTANT POINT
A plaintiff seeking a permanent injunction must prove both title and settled possession, failing which the claim may be dismissed.

JUDGMENT :

C. KUMARAPPAN, J.

1. As per the order of My Lord The Hon'ble Acting Chief Justice dated 12.06.2024, this Second Appeal has been listed before this Court.

2. The plaintiff is the appellant herein and the defendant is the respondent in the instant Second Appeal.

3. For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.

4.1. The brief facts which give rise to the instant second appeal is that, the suit property absolutely belongs to the plaintiff. It is the submission of the plaintiff that the defendant's brother Vadivel Mudaliar has purchased the suit property in the year 1943 from whom, who has no title over the same. Therefore, the plaintiff's husband Ponnurangam Pillai filed a suit for declaration and for possession in O.S. No. 34 of 1947. Wherein, he obtained decree on 13.11.1947. In pursuance of the said decree, the plaintiff's husband Ponnurangam Pillai has took delivery of possession of property on 28.04.1951 from Vadivel Mudaliar. Even after such delivery, when Vadivel Mudaliar has again interfered with the possession of the plaintiff, the plaintiff's husband Ponnurangam Pillai has again filed a suit in O.S. No. 45 of 1953 and obtained a decree on 23.04.1954. In pursuance of such decree, a delivery of possession was effected in his favour on 28.09.1954. Not satisfying with the two litigations, Vadivel Mudaliar has again interfered with the plaintiff's husband's possession. Hence, the plaintiff's husband Ponnurangam Pillai has filed the third suit in O.S. No. 469 of 1968, where the said Vadivel Mudaliar has submitted to a decree on 15.10.1968 and based upon such submission, the suit was decreed in favour of the plaintiff.

4.2. It is the further submission of the plaintiff that, her husband has executed a Will dated 02.07.1971. Therefore, by virtue of the Will dated 02.07.1971, she became the absolute owner of the property, after the demise of her husband on 07.12.1972. Since the defendant, without having any manner of title or possession over the suit property, interfering with the possession and enjoyment of the plaintiff, necessitated the plaintiff to file the instant suit for the relief of permanent injunction.

5. The said suit was resisted by the defendant by contending that the entire suit property is not belonged to the plaintiff. According to the defendant, the boundaries given in the plaint is wrong and that the defendant has been in possession and enjoyment of item 2 property qua an extent of 10½ yards East-West, and 9¼ yards South-North with a Well. Thus, it is the case of the defendant that they have prescribed title to the suit property by adverse possession as their possession was open, continuous and adverse to the plaintiff for more than a statutory period. It is the submission of the defendant that he has got two brothers by name Vadivel Mudaliyar and Nallathambi Mudaliyar and that the defendant and his brothers were joint till 1946. Thereafter, there was an amicable, oral partition. In pursuance of such oral partition, they were in possession and enjoyment of their respective shares. Only to evidence the above said partition, a registered partition deed was entered between the parties on 22.11.1974. According to this defendant, by virtue of the above partition ded, the suit property was fell to the share of the defendant and his younger brother Nallathambi Mudaliyar jointly. It is also the submission of the defendant that, they have been using the suit property as cattle shed and for storing haystack and manure. It was the further contention of the defendant that O.S. Nos. 34/1947 and 469/1968 will not bind upon this defendant as they were not the party to those suits. This defendant has specifically denied the possession receipt dated 28.09.1954. He would further submit that, he did not know as to how to write and read, but he would only know to sign. Therefore, it is his contention that the alleged possession receipt will not bind up