A suit for permanent injunction requires proof of possession; if title is disputed, a declaratory suit is necessary, and failure to include necessary parties renders the suit untenable.

JUDGMENT :

G.Ilangovan, J.

This second appeal is filed against the judgment and decree passed in AS No.48 of 2003 by the District Judge, Sivagangai, dated 20/07/2004, confirming the judgment and decree passed in OS No.86 of 1995, dated 21/02/2003 by the Principal District Munsif, Manamadurai.

2.The plaint:-A portion of the suit property situated in Survey No.326/118 measuring about 0.11.34 Hectare belongs to the plaintiffs ancestors. Another portion was purchased by the father of the 2^nd plaintiff on 23/06/1945. After purchase, they are enjoying the property without any division and partition, in occupation and possession by constructing the house, cattle shed, etc. They were issued with patta No.1607. The defendants have no right over the property. They are having house and vacant site on the north of the suit property. When the defendants started constructing a house in the vacant site, attempted to encroach upon the suit property. Hence, the suit for permanent injunction and costs.

3.The second defendant filed written statement adopted by the first defendant:- The title and possession of the plaintiffs are denied. The suit property belongs to the second defendant ancestrally. They were dealing with the property right from the beginning and enjoying the same by paying kist. It was locally called as 'Kalangarai Thottam'. The enjoyment of the second defendant was objected. So, a panchayat was arranged, in which the possession and enjoyment of the second defendant's ancestors were recognized and issued a receipt by the objectors. In the receipt, Sevugan Ambalam the grand father of the plaintiffs 2 and 3 signed as a witness. Similarly in various documents, the possession and title of this defendant are mentioned and they were in the habit of mortgaging and redeeming the same. Apart from that, it is also stated that the suit is bad for non-joinder of necessary parties and the suit simpliciter for permanent injunction is not valid, since the title of the plaintiff is denied.

4.Additional statement filed by the second defendant states that the description of the property is not proper and correct. In the property measuring about 6 cents, wherein one SP.Sekaran, the brother of the 3^rd plaintiff and Kannathal constructed houses. The remaining 22 cents belonged to the second defendant as mentioned in the written statement. In the suit, the father of the second plaintiff is not added as party, since the sale deed dated 23/06/1945 was standing in his name. In the main plaint, the sale deed, dated 23/06/1945 was suppressed. But they have stated in the petition before the DRO during patta transfer proceedings. The sale deed, dated 23/06/1945 is fabricated one. The suit property was not mentioned in the partition that took place between the 1^st plaintiff's father and his sharer in 1950. Right from 1937 onwards, the document was available to show the title and possession of the defendants. The second defendant is in enjoyment of the property by constructing cattle shed, raising trees, dumping yard.

5.On the basis of the pleadings, the following issues were framed by the trial court:-

(1)Whether the suit property is the ancestral property of the plaintiffs?

(2)Whether the plaintiffs are entitled for injunction as prayed for?

(3)Whether the suit property is property owned by the 2^nd plaintiff ancestrally?

(4)Whether the suit is bad for non- joinder of necessary parties?

(5)Whether the plaintiffs are barred by estoppel?

(6)To what other reliefs, the plaintiffs are entitled to?

(7)Whether the sale deed, dated 23/06/1945 is a genuine document?

6.During trial, on the side of the plaintiffs, 2 witnesses were examined and 7 documents marked. On the side of the defendants, 4 witness were examined and 36 documents marked. The Commissioner's report & plan are marked as Exs.C1 to C4.

7.At the conclusion of the trial, the trial court dismissed the suit without any costs. Against which, the plaintiffs filed appeal before the District Court, which confirmed the judgment