A party claiming an injunction must prove ownership and entitlement to the disputed property; mere possession is insufficient without clear evidence.

JUDGMENT

Heard.

2. This Second Appeal is by the plaintiff in O.S. No.754 of 2005, challenging the concurrent judgments whereby the suit came to be dismissed by the I Additional District Munsif Court, Kallakurichi on 10.08.2011 and the said dismissal was confirmed by the Subordinate Judge, Kallakurichi in A.S. No.95 of 2011 on 11.10.2012.

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

4. The suit was instituted for permanent injunction to restrain the defendants from trespassing into the suit property and from interfering with the plaintiff’s peaceful possession and enjoyment, particularly in relation to the portion shown as C D E F in the plaint rough sketch, including the common wall marked E F and the alleged vacant strip of 1 ½ feet adjoining the plaintiff’s construction, the interference being pleaded to have commenced from 15.09.2005 onwards. The plaintiff avers that the suit property absolutely belongs to him, that he is in possession and enjoyment, and identifies it with reference to the plaint plan markings as “A B C D E F”; he further relies on a registered sale deed dated 13.01.2001 and pleads that patta stands in his favour.

5. The defendants denied the claim and asserted rights over the adjoining Plot No.25. According to them, while the plaintiff commenced construction in September 2005, he encroached into their side. The defendants had also filed O.S. No.964 of 2005 seeking, mandatory injunction, alleging encroachment by the plaintiff.

6. Before the trial court, the plaintiff examined PWs 1 to 4 and marked Exs. A1 to A10, while the defendants examined DWs 1 and 2 and marked Exs. B1 to B6; in addition, the court marked Exs. C1 to C4 comprising the commissioner’s reports and plans. The trial court held that the plaintiff had failed to prove entitlement to the alleged strip/extent on the western side of his house and had not approached the court with clean hands, and accordingly dismissed both suits. The defendants did not file any appeal against the said findings in O.S.No.964 of 2005 and therefore, the findings has attained finality.

7. On reappreciation, the First Appellate Court concurred with the Trial Court and dismissed the appeal, confirming the decree dated 10.08.2011 in O.S.

No. 754/2005, without costs.

8. Aggrieved by the concurrent dismissal, the plaintiff has preferred this Second Appeal contending that both courts erred in dismissing the bare injunction suit by relying on irrelevant third-party documents and by rejecting Exs. C1 and C2 (Advocate Commissioner’s report and plan), though, according to him, they are independent evidence on which findings ought to have been based; he also alleges inconsistency in rejecting the commissioner’s measurements while accepting from the same material a one-foot gap between the defendants’ thatched structure and the plaintiff’s wall, and challenges the non-acceptance of Ex. A10 photographs on the stated ground that the commissioner’s report did not advert to the suit property.

9. He further assails reliance on DW2 as an interested witness on the “common wall” issue, disputes the finding that his right in the alleged common wall was unproved beyond Ex. A1 and for want of parent/title deeds, and contends that the dispute concerns only a 1½ ft × 50 ft strip requiring determination of identity and possession and, even in an injunction suit, adjudication of title on the parties’ documents, as he claims lawful ownership. He lastly urges that the courts ought to have preferred the commissioner’s evidence over interested oral testimony and held that he proved possession and