A plaintiff must prove possession to succeed in an injunction claim; reliance on a cancelled settlement deed without proof of occupation is insufficient.

JUDGMENT

The defendants 1 to 3 are the appellants in the present Second Appeal.

The parties are described as per their litigative status before the trial Court.

2. The facts on which the plaintiff filed a suit for permanent injunction, are that the suit property belongs to the plaintiff and the plaintiff is in possession and enjoyment of the suit property. The defendants 1 and 4 are the brothers of the plaintiff and the defendants 2 and 3 are the sons of the first defendant.

3. According to the plaintiff, the suit property was settled by her father, Gopalsamy Udayar under a registered settlement deed dated 15.07.1987, pursuant to which, the plaintiff has been in enjoyment of the suit property.

Even though, the defendants have no right in the suit property, on 15.01.2006, the defendants restrained the plaintiff from fencing the suit property and therefore, the suit was instituted.

4. The defendants filed written statement stating that the description of the suit property was incorrect and the plaintiff's father, during his life time, had cancelled the settlement deed by way of cancellation deed dated 28.03.1988, which was, within eight months from the date of settlement. The plaintiff was never in possession of the suit property in pursuance of the settlement deed also and the plaintiff was fully aware of the cancellation of the settlement deed. Even the patta for the suit property continued to be only in the name of the father of the plaintiff, Gopalsamy Udayar and in fact, the father of the plaintiff had also given a representation to the Tahsildar not to cancel or transfer the patta in favour of the plaintiff. The Tahsildar also ordered the patta to be retained in the name of the father of the plaintiff and the plaintiff is fully aware of all these facts and suppressing the same, she has filed the suit. It is also contended by the defendants that the kist receipts, filed by the plaintiff, do not relate to the suit property and the alleged patta transfer order dated 26.12.2005 in the name of the plaintiff was without notice to the defendants and without noticing the cancellation of the settlement deed by the father himself.

5. The trial Court, on appreciating the oral and documentary evidence, dismissed the suit finding that the plaintiff has not proved her possession and enjoyment of the suit property.

6. The plaintiff preferred an appeal in A.S.No.31 of 2013. The first appellate Court reversed the findings of the trial Court, thereby decreed the suit filed by the plaintiff. Aggrieved by the decree of the first appellate Court, the defendants have preferred the Second Appeal.

7. On 12.12.2018, this Court admitted the Second Appeal on the following substantial questions of law:-

1. Whether the Lower Appellate Court is correct in law in set aside the Judgment and Decree of the Trial Court totally overlooking the fact that the suit is one for injunction and the plaintiff has not proved his possession?

2. Whether the Lower Appellate Court is correct in law in overlooking the axiomatic principle of law that the plaintiff has to succeed on the strength of his case and not the weakness of the defense?

3. Whether the Lower Appellate Court was correct in law in overlooking the petition for amendment filed by the plaintiff in I.A.No.8 of 2014 where she sought to amend the plaint to include the prayer of declaration and possession thereby admitting that she was not in possession of the suit property?”

8. I have heard Mr.C.Nithysh Sekhar, learned counsel for the appellants and Mr.M.Thamizhavel, learned counsel for the respondent and I have also gone through the pleadings, documents, oral and evidence and the judgment of the Courts below.

9. First and foremost, I find that the suit has been filed for a bare injunction. On going through the plaint, it is evident that the plaintiff has rested her case only on the settlement deed, executed by her father. There is no mention about the alleged cancellation deed executed by the father dated 28.03.1988, e