A party not in possession cannot claim a decree for permanent injunction protecting possession, rendering the appeal under Section 100 CPC unsustainable.

JUDGMENT

Heard.

2. This Second Appeal is filed by the plaintiff in O.S.No.225 of 2007, against the judgment and decree dated 29.07.2011 passed in A.S.No.45 of 2011 by the Additional District Court, Namakkal, whereby the decree of dismissal dated 12.12.2007 made in O.S.No.225 of 2007 on the file of the Principal District Munsif Court, Namakkal, came to be confirmed.

3. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.

4. Plaintiff’s case: The suit in O.S.No.225 of 2007 was laid for bare permanent injunction in respect of a portion of S.No.364, Keerambur Village, Namakkal District described as “cart-track poramboke”, and measuring about 60 feet (North–South) × 220 feet (East–West). The plaintiff averred continuous possession and enjoyment for three decades of the suit portion by planting coconut saplings, keeping haystack and tethering cattle; and that the Government, recognising such enjoyment, had collected penal charges/B-memo charges along with kist for his adjoining lands; that he had approached the revenue authorities for patta and the petition was pending; and that owing to hostility, particularly after the second defendant (his paternal cousin) became Panchayat President, there were threats and an attempted interference (including an incident stated as 10.03.2007), compelling the suit for injunction to protect possession.

5. The first defendant/Panchayat denied the plaint allegations and pleaded that the property is Government land classified as cart-track poramboke in S.No.364, that the Panchayat is charged with its maintenance/administration, and that the plaintiff is an admitted encroacher in wrongful possession, not entitled to injunction and cannot maintain a suit against the authority charged with maintaining the cart- track;that the plaintiff’s documents relate to other survey numbers and do not establish possession over S.F.No.364; It was asserted that sporadic acts like haystack or tethering cattle do not constitute lawful possession; that on villagers’ objections the Tahsildar had initiated action and by proceedings dated 16.11.2005 the encroachment was removed; and the plaintiff was no longer in possession; and that the suit was also defective for non-joinder of the Government.

6. The Trial Court dismissed the suit. The First Appellate Court, in A.S.No.45 of 2011, confirmed the dismissal. The plaintiff has preferred the present Second Appeal.

7. The Trial Court, on Ex.B5 (Tahsildar memo dated 16.11.2005), the Trial Court did not accept it at face value, noting the plaintiff’s contention that the Advocate Commissioner’s report/plan (Ex.C1–C2) showed coconut saplings and haystack and therefore rendered Ex.B5 “unbelievable/ cannot be accepted”. However, the Trial Court simultaneously held that the Commissioner’s report cannot prove juridical possession, since a Commissioner cannot decide who is in possession and the Court cannot conclude possession solely from such report. The Trial Court then recorded a clear and categorical finding that the plaintiff failed to establish possession as on the date of suit, chiefly because (i) penal/B- memo/kist receipts were only up to 2004, (ii) the suit was filed in 2007, and (iii) both PW1 and DW2 (Deputy Tahsildar) confirmed that no B- memo was issued after 2004, hence there was no contemporaneous documentary proof of possession at suit time; therefore, the claim for injunction was rejected. The Court further reasoned that S.No.364 stood classified as cart-track poramboke and, in that setting, the plaintiff’s possession was not established and thereby injunction refused.

8. The First Appellate Court correctly addre