THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.01.2024 CORAM:

THE HONOURABLE MRS.JUSTICE S.SRIMATHY S.A.(MD).No.686 of 2023 and C.M.P.(MD)No.16842 of 2023 M.Thangavel ... Appellant/ Appellant/ Plaintff /Vs./

D.Parimalam ...Respondent/ Respondent/ Defendant P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree passed in A.S.No.19 of 2022, dated 05.09.2023, on the file of the Principal Sub-Court, Palani, confirming the judgment and decree passed in O.S.No.27 of 2019, dated 30.03.2022, on the file of the District Munsif Court, Palani.

For Appellant : Mr.S.Raja For Respondent : Mr.K.Pragadeesh Kumar *****

JUDGMENT

The second appeal is preferred against the judgment and decree passed by the Trial Court and the First Appellate Court.

(*)“2. The plaintiff is the appellant herein and the suit is filed for bare injunction. For the sake of convenience, the parties are referred as per ranking in the suit. The facts as stated in the plaint is that the plaintiff is the brother-in-law of the defendant. The suit property was purchased by the defendant through sale deed dated 05.07.1989. While purchasing the said property, the defendant had no enough money. Hence the plaintiff had helped the defendant by paying part amount of the sale consideration. After purchase of the property, the defendant had allowed the plaintiff to reside in the suit property. The family of the defendant were living elsewhere owing to their job. The contention of the plaintiff is that there was a power of attorney deed dated 01.01.2000, wherein the defendant had granted power to carry out repair works in the suit property and based on the same, the plaintiff had carried out repair works for Rs.3,00,000/-. Thereafter, the defendant had received Rs.5,00,000/- from the plaintiff and executed Othi Deed dated 11.08.2015. Subsequently, the Othi was extended through Extension Deed dated 10.08.2018. Hence, the plaintiff had prayed for bare injunction restraining the defendant not to interfere in the peaceful possession of the suit property. Both the Courts have disbelieved the case of the plaintiff and dismissed the suit and it is concurrent finding. Aggrieved over the same, the present second appeal is filed.”

3. The Trial Court has categorically rendered a finding that the plaintiff is claiming that Othi agreement was executed between the parties but the plaintiff has not filed or marked the alleged Othi document. Without any documents, the plaintiff is claiming that Othi was executed between the parties and when there is no evidence it cannot be believed and dismissed the suit.

4. At the time of admission of the second appeal, the Learned Counsel appearing for the appellant / plaintiff submitted that the he is contemplating to file a miscellaneous application to accept the additional documents namely Power of Attorney, Othi Agreement and Extension of Othi Agreement. Further, the appellant has suffered a finding that he has not filed the Othi document and in such circumstances, the said petition to file additional documents cannot be accepted. Further the defendant had stated in the written statement such documents are false. It is seen that the said documents namely Power of Attorney, Othi Agreement and Extension of Othi Agreement were not registered, hence the same cannot be accepted. Therefore, this plea of the plaintiff / appellant cannot be entertained and the same is rejected.

5.The appellant has raised the following substantial questions of law.

“(a) Whether the defendant has proved her possession?

(b) When the defendant has admitted possession of plaintiff whether the lower and appellate court rightly dismissed suit and appeal?

(c) When the defendant has admitted the possession of the plaintiff, whether the plaintiff has to prove the possession?”

The contention of the plaintiff is that even an encroacher is entitled to injunction, if the possession is proved. But in the present case the plaintiff had relied on the Power of