In property disputes, all sharers must be joined as necessary parties to ensure valid adjudication of rights, as established in the judgment.

JUDGMENT :

Feeling aggrieved with the judgment and decree dated April 29, 2017 passed by the 'Sub Court, Tambaram' ['First Appellate Court' for short] in A.S.No.48 of 2015, the appellant therein has filed this Second Appeal.

2. The appellant herein is the plaintiff and the respondent herein is the defendant in O.S.No.17 of 2014 on the file of 'District Munsif Court, Tambaram' ['Trial Court' for short].

Plaintiff's case:

3. The case of the plaintiff is that the plaintiff's parents, Rajaram and Palammal, had 2 sons – plaintiff and defendant as well as 4 daughters namely, S.Rani, Kala, Neela and Indira. The plaintiff's father-Rajaram owned an extent of 2,632 Sq.ft. in S.No.145/B2 and an extent of 500 Sq.ft. in S.No.333/A1, of Selaiyur Village, East Tambaram. According to the plaintiff, father-Rajaram executed a Will dated May 26, 1998 whereby, he bequeathed the suit property to the plaintiff subject to the life interest created in favour of his wife-Palammal. On the same day, he executed another Will whereby, he bequeathed the property behind the suit property to the defendant. The plaintiff's father-Rajaram passed away on January 31, 2012 and his mother-Palammal passed away in May 2007. Hence, the Wills dated May 26, 1998 came into effect and both the plaintiff and the defendant have been in possession and enjoyment of their respective property allotted under the said Wills.

3.1.Since the defendant tried to interfere with the plaintiff's peaceful possession and enjoyment, the plaintiff filed a suit in O.S.No.76 of 2010 seeking the relief of permanent injunction against the defendant and after full trial, the suit was dismissed on March 28, 2012.

3.2.Aggrieved with the same, the plaintiff filed A.S.No.31 of 2012 before the Sub Court, Tambaram. The said appeal was dismissed vide judgment and decree dated March 26, 2013 with liberty to file fresh suit with the same cause of action. Consequently, the plaintiff filed the present Original Suit in O.S.No.17 of 2014 on the file of the District Munsif Court, Tambaram.

4. The defendant filed written statement denying the averments made in the plaint. The defendant denied that his father-Rajaram partitioned the property through Wills. The defendant contended that the suit is bad for non-joinder of necessary parties. He further contended that only the plaintiff and the defendant are in occupation of the suit property, while their sisters are residing along with their respective husbands elsewhere from the suit property. He denied that the suit Will dated May 26, 1998 (Doc. No.77/1998) is false. Further, he denied the division of property as stated in the plaint. Accordingly, he prayed to dismiss the suit as not maintainable.

5. Based on these pleadings, the following issues were framed by the Trial Court:

“(i)Whether the plaintiff is entitled to vacate the defendant from the suit Property?

(ii)Whether the plaintiff is entitled for mandatory injunction as per the terms of Will dated 26.05.1998?

(iii)Whether the plaintiff is entitled for permanent injunction?

(iv)To what other reliefs?”

6. At trial, on the side of the plaintiff, the plaintiff was examined as P.W.1 and Kumar – Attestor of the Will was examined as P.W.2. Ex-A.1 to Ex-A.21 were marked. On the side of the defendant, defendant was examined as D.W.1 and no documents were marked.

7. Upon hearing either side and perusing the records, the Trial Court held that injunction against co-owner cannot be granted; that the Suit is bad for non-joinder of the necessary parties viz., the 4 daughters of the testator – Rajaram; that there is no prayer for declaration of title despite the observation made in A.S.No.31 of 2012. Upon these findings, the Trial Court dismissed the Suit. On appeal by the aggrieved plaintiff, the First Appellate Court concurred with the findings of the Trial Court and dismissed the Suit. Aggrieved with the same, the plaintiff has filed this Second Appeal.

Arguments:

8. The learned counsel for the appellant/plaintiff argues that the Wil