(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 21.09.2011 passed in A.S. No.13 of 2011, on the file of the Subordinate Court, Udhagamandalam, The Nilgiris, reversing the decree and judgment dated 17.11.2009 passed in O.S.No.137 of 2003, on the file of the District Munsif Court cum Judicial Magistrate, Coonoor, The Nilgiris.)

1. The second appeal has been preferred as against the judgment and decree dated 21.09.2011 passed by the Subordinate Court, Udhagamandalam, The Nilgiris, in A.S.No.13 of 2011. The appellant herein has filed the suit in OS No.137 of 2003 on the file of the District Munsif Court cum Judicial Magistrate, Coonoor, The Nilgiris and the said suit was decreed on 17.11.2009. Aggrieved by the said decree and judgment, the defendants have preferred an appeal in AS No.13 of 2011 on the file of the Subordinate Court, Udhagamandalam, The Nilgiris and the first appellate court allowed the appeal by setting aside the decree and judgment passed by the trial court and dismissed the suit on 21.09.2011. Aggrieved by the said decree and judgment, the present second appeal has been preferred by the appellant/plaintiff.

2. For the sake of convenience, the parties are referred to as per their rank in the Trial Court and at appropriate places, their rank in the present second appeal would also be indicated.

3. The brief averments of the plaint are as follows :

Originally, the suit property belonged to one Thippe Baby as ancestral property and the said Thippe Baby sold the suit property for proper and valid consideration through sale deed dated 12.05.2003 in favour of the plaintiff. Pursuant to the above sale deed, the plaintiff has been in possession and enjoyment of the suit property. After getting the sale deed, the plaintiff also transferred patta in her name and she has been paying kist to the suit property. While so, the defendants have attempted to trespass into the suit property and thereby filed the suit for permanent injunction.

4. The case of the defendants before the trial court is that the suit is false and not maintainable. Thippe Baby did not get title and possession over the suit property. The sale deed executed in favour of Thippe Baby dated 12.05.2003 and she is in possessionpursuant to the sale deed are denied. The said sale deed is sham and nominal and it is fabricated to defeat the interest of the defendants and no title has been passed through the sale deed and no possession was granted through the sale deed. Infact, originally the suit properties and other properties belonged to one B.S.Nanjan as ancestral property. The said Nanjan had executed a registered Power of Attorney deed dated 10.03.1989 in favour of the first defendant’s husband C.K.Nandhi and based on the above Power Deed, possession was also granted to the husband of the first defendant to an extent of 4 acres. Subsequently, the said Nanjan sold the property to the first defendant’s husband through unregistered sale deed dated 10.05.1989. Thereby the said Nandhi had been in possession and enjoyment of 4 Acres of land in RS No.1221/1. After the demise of Nandhi, the defendants as his legal heirs have succeeded to the said 4 Acres of land including the suit property and they have been in possession and enjoyment of the property by excluding others. Thereby they asserted the title through adverse possession also. While so, the son of the plaintiff, namely, Jaffer had filed the suit in OS No.72 of 2003 on the file of the District Munsif Court, Coonoor, by claiming his possession and enjoyment through Lease Deed dated 01.05.2003. The defendants also filed written statement and thereafter, the said suit was not pressed by the plaintiff on 17.07.2003. Accordingly, the suit was dismissed. Therefore, it is false to say that Thippe Baby was executed the sale deed dated 12.05.2003 and she was put in possession of the suit property. The plaintiff, being the mother of Jaffer, suppressing the real facts and filed the suit and there is no cause of action of the suit and the suit is liable to be dismissed.

5. Based on the above said pleadings and after hearing both sides and perusing the records, the Trial Court has framed the following issues :

                   i. "(i) Whether the plaintiff is entitled to the permanent injunction as prayed ?

                   (iii) To what other relief the plaintiff is entitled to ?”

6. In order to prove the case, before the Trial Court, the plaintiff was examined as PW1 and marked Ex.A1 to Ex.A4. On the side of the defendants, DW1 and DW2 were examined and marked Ex.B1 and Ex.B2.

7. After analysing the evidence adduced on both sides, the Trial Court decreed the suit and granted the decree for permanent injunction. Aggrieved by the said decree and judgment, the defendants have preferred an appeal in A.S.No.13 of 2011 before the Subordinate Court, Udhagamandalam, The Nilgiris, on various grounds.

8. The First Appellate Court, after hearing both sides and perusing the records, framed the following point for determination:

                   (i) “Whether the plaintiff is entitled to get the permanent injunction as sought ?

                   (ii) To what relief ?”

9. After hearing both sides and perusing the records, the First Appellate Court allowed the appeal by setting aside the decree and judgment passed by the trial court. Aggrieved by the said decree and judgment of the first appellate court, the present second appeal has been preferred by the appellant / plaintiff.

10. This Court, at the time of admitting the second appeal, formulated the following substantial questions of law :

                   i. Has not the first appellate judge committed an error of law in merely accepting the oral testimony of the second defendant, without any documentary evidence being filed to prove his stand for reversing the well considered judgment of the trial court ?

                   ii. Is not the appellant / plaintiff entitled to the decree for injunction being an equitable relief, based on the registered instrument of sale copied with possession, supported by the admission made by DW1 and consequently the judgment of the first appellate court is bad in law ?”

11. Heard Mr.J.Franklin, learned counsel appearing for the appellant and Mr.N.Damodaran,learned counsel appearing for the respondents.

12. The learned counsel appearing for the appellant would submit that the appellant is the plaintiff before the trial court and filed the suit for permanent injunction as against the respondents / defendants. In fact, the suit property was purchased by the plaintiff through sale deed dated 12.05.2003 and thereafter, she muted the revenue records in her name and paying kist to the suit property. While so, the defendants illegally tried to trespass into the suit property. Thereby, lodged a complaint dated 21.05.2003 and again on 05.12.2003, the defendants have tried to trespass into the suit property. Thereby, filed the suit. In order to prove the case of the plaintiff, she was examined as PW1 and marked Ex.A1 to Ex.A4. Through evidence, the plaintiff has proved her possession and enjoyment of the suit property. The defendants claimed the property through Power Deed dated 10.03.1989 and also unregistered sale deed dated 10.05.1989. The defendants have not filed any documents to prove their possession and only marked Ex.B1 and Ex.B2 and no other documents filed. The trial court, after considering the evidences on both sides correctly, decreed the suit by holding that the plaintiff had proved her ascertain title and possession through Ex.A1 to Ex.A3. The defendants claiming possession through Power of Attorney dated 10.03.1989 and unregistered sale deed dated 10.05.1989 and no other documents filed by them to prove their possession. Further, the defendants also admitted in his evidence that the plaintiff is residing in the house which is within the suit property. Therefore, based on the admission made by the defendants, the trial court decreed the suit. However, the first appellate court without considering the evidence of the plaintiff in a proper perspective manner and without any documents allowed the appeal by setting aside the decree and judgment passed by the trial court.

                   12.1. Ex.B1 is the certified copy of the judgment passed in OS No.72 of 2003 and Ex.B2 is the certified copy of plaint in OS No.72 of 2003. The defendants have not even produced the alleged Power Deed and unregistered sale deed and they have not produced any piece of evidence in respect of the suit property. While so, the first appellate court only based on the judgment and decree passed in OS No.72 of 2003 which is filed by the plaintiff’s son, claiming that he was in possession and enjoyment of the suit property by virtue of the lease deed. In fact, there is no evidence as to whether the defendants are in possession and enjoyment of the suit property. Merely because the son of the plaintiff filed the suit earlier as against the same defendants for the relief of permanent injunction, the same cannot be proof for the possession of the defendants. However, the first appellate court wrongly came to a conclusion that the possession of the property was not granted to the plaintiff through the sale deed, contrary to the recital of the sale deed and the evidence adduced on the side of the plaintiff side. Therefore, the above said findings of the first appellate court are perverse and the first appellate court committed an error in merely accepting the oral testimony of the second defendant, without any documentary evidence being filed to prove his stand for reversing the well considered judgment of the trial court. The first appellate court failed to consider the admission made by DW1 regarding the possession of the plaintiff and decline to grant decree of permanent injunction being an equitable relief, based on the registered instrument of sale coupled with possession. Therefore, the decree and judgment passed by the trial court are liable to be set aside. The findings of the first appellate court are perverse and the decree and judgment passed by the trial court are liable to be set aside.

13. The learned counsel appearing for the respondents would submit that the appellant has filed the suit for the relief of permanent injunction as against the respondents / defendants claiming that she purchased the property from Thippe Baby through sale deed dated 12.05.2003 and also claiming that possession of the property pursuant to the purchase of the sale deed. In fact, the property was under the possession of the defendants and the first defendant’s husband obtained Power Deed from the original owner, namely, B.S.Nanjan through Power of Attorney dated 10.03.1989 and pursuant to the power deed the first defendant’s husband Nandhi was in possession and enjoyment of the property and thereafter, the same property was sold by the said Nanjan in favour of C.K.Nandhi through unregistered sale deed dated 10.05.1989. Therefore, they are in possession and enjoyment of the property. Already the son of the plaintiff has filed the suit in OS No.72 of 2003 as against these defendants for permanent injunction claiming that he is in possession and enjoyment of the property pursuant to the lease deed dated 01.05.2003. The said suit was not pressed by him on 17.07.2003. Therefore, the possession of the property has not been granted to the plaintiff through the sale deed dated 12.05.2003 and the said sale deed is only sham and nominal document and the same has not been acted upon. When the possession of the property was given to the plaintiff’s son based on the lease, how the possession was granted to the plaintiff has not been explained and only to defeat the rights of the respondents / defendants the sham and nominal documents were created by the plaintiff. However, the trial court failed to consider the above said aspects and erroneously decreed the suit by holding that the plaintiff purchased the property and also mutated the revenue records in her name and thereby, decreed the suit. However, the first appellate court, after considering the evidence on both sides, correctly held that when the plaintiff’s son claiming the property by way of lease then how the possession of the property was given to the plaintiff has not been explained by the plaintiff, the possession of the property has not been given to the plaintiff and in order to grab the property, the plaintiff has filed the suit. Therefore, correctly allowed the appeal and dismissed the suit. Therefore, the second appeal is liable to be dismissed as there is no substantial question of law involved in this case.

14. This Court heard both sides and perused the records.

15. In this case, the plaintiff has filed the suit for permanent injunction as against the defendants restraining them from interfering with their peaceful possession and enjoyment of the suit property. The plaintiff claims the property through sale deed dated 12.05.2003. In pursuant to the same, she mutated the revenue records in her name and also paid kist to the suit property. In order to prove the same, the plaintiff was examined as PW1 and marked Ex.A1 to Ex.A4. PW1 has deposed about the purchase of the property and her possession. Ex.A1 is the sale deed dated 12.05.2003 ; Ex.A2 is the chitta extract ; Ex.A3 is the patta transfer order. From the above said evidence, it is clear that the plaintiff purchased the property and she has been in possession and enjoyment of the property.

16. The defendants denied the title and possession of the plaintiff and according to them, the property originally belonged to one B.S.Nanjan and he executed the power deed in favour of the first defendant’s husband, namely, C.K.Nandhi on 10.03.1989. On the same day, possession was also granted in favour of the first defendant’s husband in respect of 4 Acres of land in RS No.1221/1 and subsequently, on 10.05.1989, the said Nanjan had sold the property through an unregistered sale deed to the above said extent of land in the said survey number. The said C.K.Nandhi had been in possession and enjoyment of the property. After his demise, the defendants are in possession and enjoyment of the suit property. While so, the son of the plaintiff, namely, Jaffer had filed the suit in OS No.72 of 2003 on the file of the District Munsif, Coonoor at Nilgiris, for permanent injunction as against the defendants herein alleging that she is the lessee in the lease deed dated 01.05.2003 and thereafter, the said suit was withdrawn on 17.07.2003. Therefore the possession of the property was claimed by the plaintiff’s son then how the possession of the property given to the plaintiff through sale deed has to be explained by the plaintiff.

17. The defendants in order to substantiate their contention examined DW1 and DW2 and marked Ex.B1 / certified copy of judgment passed in OS No.72 of 2003 and Ex.B2 / certified copy of plaint in OS No.72 of 2003 wherein the son of the plaintiff, namely, Jaffer filed the suit for permanent injunction as against the defendants and the same was dismissed as withdrawn. The defendants have not filed any other documents to prove their possession and not even produced the said power deed and unregistered sale deed. There is no any piece of evidence produced by the defendants to prove their possession of the suit property and they are relying upon the earlier suit filed by the plaintiff’s son, whereas the plaintiff has filed the documents of title deeds and revenue records to prove her title and possession. Therefore, the trial court correctly held that the plaintiff produced the documents Ex.A1 to Ex.A3 to prove the title and possession, whereas the defendants have not produced the documents of power deed and unregistered sale deed. According to the defendants, they are claiming possession of the suit property through power deed and the unregistered sale deed but those deeds have not been produced before the Court. Therefore, the trial court correctly decreed the suit. Further, the trial court also relying upon the admission made by DW1 about the possession of PW1 in the house situated in the suit property.

18. The first appellate court in the judgment relying upon Ex.B1 and Ex.B2 negated the judgment of the trial court. In fact, the first appellate court failed to consider the documents filed by the plaintiff Ex.A1 for title ; Ex.A2 and Ex.A3 to prove the possession of the property and failed to consider the admission made by DW1 about the possession of the plaintiff in the house situated in the suit property and placed much reliance on Ex.B1 and Ex.B2 and even failed to consider the defendants claiming possession of the property through the power deed and unregistered sale deed but those deeds have not been produced by the defendants. Merely, the son of the plaintiff filed the suit for permanent injunction as against the defendants by claiming the Lease Deed dated 01.05.2003, it does not mean that the defendants are in possession and enjoyment of the suit property and the plaintiff is not in possession and enjoyment of the suit property. Once the plaintiff proved the title and possession, it is for the defendants to rebut the said evidence and there is no rebuttal evidence. Ex.B1 and Ex.B2 are not sufficient to rebut the evidence on the plaintiff side. Thereby, the first appellate court erroneously rendered the findings that the plaintiff was not given the possession of property and the plaintiff failed to prove the case as the possession of the property has not been given to the plaintiff from her son Jaffer. Therefore, the above said findings of the first appellate court are perverse and the first appellate court committed an error of law in merely accepting the oral testimony of the second defendant, without any documentary evidence being filed to prove his stand for reversing the well considered judgment of the trial court.

19. The first appellate court failed to consider that DW1 admitted during cross examination that the plaintiff residing in the house which is situated in the suit property and the defendants have not filed any documents except Ex.B1 and Ex.B2 which are copies of decree and judgment. The suit filed by the plaintiff’s son for the relief of permanent injunction as against the defendants and those documents no way helpful to the defendants as the plaintiff purchased the property from the original owner and the possession also handed over to the plaintiff. Therefore, the plaintiff categorically proved the title and possession of the property. Therefore, the judgment of the first appellate court is bad in law holding that the plaintiff is not entitled to the decree for injunction. In fact the appellant / plaintiff is entitled to the decree for injunction being an equitable relief, based on the registered instrument of sale coupled with possession, supported by the admission made by DW1. Therefore, the substantial questions of law are answered in favour of the appellant / plaintiff and the decree and judgment passed by the first appellate court is unsustainable and are liable to be set aside. Accordingly, the second appeal is allowed.

20. In the result, the Second Appeal is allowed. The decree and judgment dated 21.09.2011 passed in A.S. No.13 of 2011, on the file of the Subordinate Court, Udhagamandalam, are set aside and the decree and judgment dated 17.11.2009 passed in O.S.No.137 of 2003, on the file of the District Munsif Court cum Judicial Magistrate, Coonoor, The Nilgiris, are restored. No costs. Consequently, connected Miscellaneous Petition is closed.