J U D G M E N T

The present Second Appeal has been filed against the judgment and decree dated 17.09.2012 passed in A.S.No.80 of 2008 before the III Additional District Court, Kallakurichi, reversing the judgment and decree dated 13.10.2005 passed in O.S.No.468 of 2001 on the file of the Principal District Munsif Court, Kallakurichi.

2. The plaintiff is the appellant herein. The plaintiff filed a suit for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment. The plaintiff and the defendants are legal heirs of one Ramu Konar. The plaintiff is the eldest son and the first defendant is a younger brother and the second defendant is the youngest brother. The first defendant namely, Kaliyamurthy died and his legal heirs are impleaded as Defendant Nos. 3 to 5. According to the plaintiff, there was an oral partition in respect of the suit property in the year 1978. On the basis of the oral partition, he obtained a patta and secured a loan from Sankarapuram Cooperative Society. The first defendant also secured a loan in respect of his property on the very same date. Thereafter, he enjoyed the property as he owned and put up a thatched house and obtained an electricity service connection and paid the property tax. Since the defendants interfered with his possession with effect from 10.07.2001, he filed a suit for permanent injunction. In the written statement, the defendants denied the factum of partition and claimed that the plaintiff was managing the family. He being the eldest son had fraudulently obtained the patta in his name instead of getting joint patta in the name of the plaintiff and the defendant Nos. 1 and 2.

3. According to the defendants, as per the family arrangement, the properties of the plaintiff and the defendants were orally divided in January, 1990. In respect of house sites, they were enjoyed in common. The suit filed by the plaintiff for declaration and permanent injunction in O.S.No.465 of 1996 is not connected to the said property. Therefore, he claimed that interference of the possession by the defendants from 10.07.2001 is false and there is no cause of action for filing the suit and the suit is not maintainable for injunction as it is filed against the co-sharers of the property.

4. The Trial Court framed the issue as to whether the property is in separate possession of the plaintiff and decreed the suit in his favour. On appeal, the Lower Appellate Court has found that the oral partition is not proved and therefore, it is a joint family property and dismissed the suit filed for injunction against the co-owners. Aggrieved over the same, the plaintiff has preferred the above Second Appeal and it was admitted on the following substantial questions of law:-

“1. Whether in law the lower Appellate Court was right in ignoring the series of documentary evidence proving the separate possession of the suit property by the appellant and coming to a perverse conclusion?

2. Whether in law the lower Appellate Court was right in failing to see that in the suit for bare injunction, a decree had to be granted when the appellant had proved his long and continuous possession on the date of the suit and when the respondents did not file even a single document to show their possession even on a single day?”

5. The learned counsel for the appellant would vehemently contend that by virtue of Ex.A5, a mortgage deed is executed in favour of the Sankarapuram Cooperative Society, it is clearly proved that the plaintiff is the owner of the six cents of land in Kosapadi Village and the first defendant is the owner of five cents on southern side of the property, which was also mortgaged on 12.07.1978 vide Ex.A7. Further, the property was brought into auction by Sankarapuram Cooperative Society vide Ex.A8. All these documents would go to show that the partition had been effected between the brothers. All the properties are shown with definite boundaries. In the Commissioner's Report, it i