A Plaintiff can seek a permanent injunction based on possession, even if deriving rights from a disputed Will, as long as the evidence supports their claim and initial possessory rights are established.

JUDGMENT :

P. DHANABAL, J.

The Second Appeal has been preferred as against the decree and judgment passed by the Subordinate Judge, Chidambaram in A.S. No.10 of 2014 dated 31.03.2015. The appellants herein are the defendants in the main Suit filed by the Plaintiff for the relief of permanent injunction. Before the trial Court, the Plaintiff, who is the respondent in this Second Appeal, filed the Suit for permanent injunction and the same was decreed. Aggrieved by the said decree and judgment, the defendants filed an appeal and the First Appellate Court dismissed the appeal confirming the decree and judgment passed by the trial Court. Aggrieved by the said decree and judgment, the Second Appeal has been filed by the defendants.

2. The gist of the Plaint are as follows:-

The Suit properties belonged to the Plaintiff’s father Kannusamy and the said Kannusamy executed a registered Will dated 15.12.1997 bequeathing the Suit properties in favour of the Plaintiff and her sister Rajayal. The Plaintiff and the said Rajayal are the daughters of the said Kannusamy. One Radhakrishnan is the son of Kannusamy and the said Radhakrishnan got Government job at Sethiyathope and he lived with his family and settled therein. Since the said Radhakrishnan has not taken care of his father Kannusamy and the daughters of said Kannusamy looked after their father, he executed a Will dated 15.12.1997 in favour of his daughters i.e., the Plaintiff and her sister Rajayal. The Kannusamy died on 02.04.2008. The mother of the Plaintiff namely Chellapangi was also under the custody of the Plaintiff. The said Radhakrishnan died intestate on 22.04.2009 leaving behind the defendants and mother Chellapangi as his legal heirs. The said Radhakrishnan, during his lifetime, had purchased some properties in his name, while he was in the job.His mother Chellapangi has share in the properties of Radhakrishnan. The Plaintiff for and on behalf of her mother demanded the share of Chellapangi with the defendants. Enraged at this, the defendants attempted to trespass upon the Plaintiff’s possession of the Suit properties on 27.12.2010 and the same was prevented by the Plaintiff. Therefore, the Plaintiff filed a Suit for permanent injunction restraining the defendants from interfering with the Plaintiff’s peaceful possession and enjoyment of the Suit properties.

3. The brief averments of written statement filed by the defendants are as follows:-

The Suit is not maintainable. It is true that the Plaintiff, one Rajayal and Mr. Radhakrishnan are the children of Mr.Kannusamy. Since Radhakrishnan was a Government servant, he had not lived in the locality and after his retirement, he had been in possession and enjoyment of the property along with his family. After the demise of said Radhakrishnan, the defendants are under possession and enjoyment of the property. The averments that the father of the said Radhakrishnan namely Mr. Kannusamy was looked after by the Plaintiff and the Radhakrishnan had not looked after his father and the said Kannusamy executed a Will in favour of the Plaintiff and her sister Rajayal and the said Kannusamy died on 02.04.2008 are all denied. The averments that after the demise of mother of the Plaintiff, she demanded the share of her mother and thereby, the defendants are attempting to interfere with the possession and enjoyment of the property are also denied. The defendants are in possession and enjoyment of the property. Therefore, the Plaintiff has only to prove all the facts and the Suit is liable to be dismissed.

4. Based on the above said pleadings and after hearing both sides, the