(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the decree and judgment made in A.S.No.2 of 2014 on the file of the Principal Subordinate Court, Trichy, dated 24.03.2014 reversing the decree and judgment in O.S.No.828 of 2009 on the file of the III Additional District Munsif Court, Trichy, dated 20.09.2013.)

1. The Second appeal is directed against the judgment and decree, dated 24.03.2014 in A.S.No.2 of 2014 on the file of the Principal Subordinate Court, Trichy, reversing the decree and judgment in O.S.No.828 of 2009, dated 20.09.2013 on the file of the III Additional District Munsif Court, Trichy.

2. The deceased first appellant is the sole defendant. The deceased first respondent as plaintiff filed the suit claiming permanent injunction restraining the defendant and his men from in any way trespassing or trying to encroach in the suit property or interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

3. Pending second appeal, the appellant/sole defendant died and his legal representatives got themselves impleaded as appellants 2 and 3. Pending second appeal, the respondent/sole plaintiff also died and his legal representatives were impleaded as respondents 2 to 6.

4. For the sake of convenience and brevity, the parties herein after will be referred as per their ranking/status before the trial Court.

5. The case of the plaintiff in brief is as follows:

               a)The plaintiff and the defendant are the sons of one Late.M.Periyakaruppan. The said Periyakaruppan had two wives, namely Kamalam and Mariyayee. The plaintiff was born to the said Periyakaruppan through his first wife Kamalam. The said Periyakaruppan had sons by name Subaramani/defendant and two daughters namely Parameshwari and Pushpa. Periyakaruppan's father Muthuveeran and the deceased Periyanna Vathiyar are brothers. The Periyanna Vathiyar adopted his brother's son Periyakaruppan,

               b) Originally, the suit property belonged to the said Periyanna Vathiyar. He executed a registered Will, dated 05.09.1938 and died in the year 1940. As per Will, 'A' schedule property shows therein was allotted to Chinnapponnu Ammal, who is the wife of Periyanna Vathiyar, for her lifetime and thereafter, to her daughter Achammal and then to vest with his granddaughters Kamalam and Mariyayee and their successors. The 'C' schedule property was allotted to his wife and the second item of 'B' schedule property was allotted to his son Periyakaruppan. The first item of 'B' schedule property, which is agricultural land coconut grove/ the suit property herein, was allotted for charitable purposes.

               c) As per Will, the first male legal heir of male successor has right to continue in possession and enjoyment of the suit property and he has to perform the duties to the local temple from the revenue obtained from the suit properties. After the death of the said Periyakaruppan in the year 1994, the plaintiff being the eldest son, had automatically acquired the suit property and he has been performing all his obligations to the local temples regularly. The Revenue authorities granted patta in favour of the plaintiff and he is regularly paying necessary tax to the Government.

               d) The defendant has absolutely no right, title or interest over the suit property, but he has been attempting to trespass into the suit property. Hence, the plaintiff was constrained to file the above suit claiming permanent injunction.

6. The defence of the defendant is of total denial.

               a) The defendant denied and disputed the validity, attestation, execution and genuineness of the Will. It is the further defence of the defendant that since the Will is burdened with conditions, the same is invalid. It is his further stand that after the death of Periyakaruppan, the suit properties and other properties were commonly enjoyed by the plaintiff and the defendant and that thereafter, both of them entered into an oral partition in respect of family properties, wherein an extent of 0.14 acres in S.No.248/1D and an extent of 0.62 acres in S.No. 222/2E both in Athavathur east village were allotted to the defendant and since it was deficit, the plaintiff allotted 0.40 cents in S.No.331/1C part of the suit property and that due to escalation of land value in which, the suit property is situated, the plaintiff has been trying to grab the 0.40 cents, which is in exclusive possession and enjoyment of the defendant. Hence, the suit is liable to be dismissed.

7. The learned trial Judge, upon considering the pleadings of both the parties, framed the following issues:

               (i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

               (ii) To what other relief if any ?

8. During trial, the plaintiff examined himself as P.W.1 and one other witness Shanmugam as P.W.2 and exhibited five documents as Ex.A.1 to Ex.A.5. The defendant examined himself as D.W.1 and one other witness Thiru.P.Sreenivasan as D.W.2 and exhibited one document as Ex.B.1.

9. The learned trial Judge, upon considering the pleadings and evidence both oral and documentary and on hearing the arguments of both the sides, passed the judgment and decree, dated 20.09.2013, dismissing the suit. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal in A.S.No.2 of 2014 and the learned Principal Subordinate Judge, Tiruchirappali, upon considering the materials available on record and on hearing the arguments of both the sides, passed the impugned judgment and decree, dated 24.03.2014, allowing the appeal and thereby setting aside the judgment and decree of the trial Court and consequently, granted the relief of permanent injunction as sought for. Challenging the impugned judgment and decree, the defendant has preferred the present second appeal.

10. At the time of admission, the following substantial questions of law came to be formulated:

               (i) Whether the Will has been proved by the plaintiff according to Sections 68 and 69 of the Indian Evidence Act?

               (ii) Whether the adoption of the Respondent/Plaintiff has been proved or not?

               (iii) Whether the physical possession of the suit property has been kept in the custody of this Appellant or the Respondent/Plaintiff?

               (iv) Whether the revenue officials are having jurisdiction or power to issue any patta in the name of the person, when the property related to management of trust?

11. The relationship between the parties is not in dispute. The plaintiff and the defendant are the sons of M.Periyakaruppan. The said Periyakaruppan had two wives, namely, Kamalam and Mariyayee. Through his first wife Kamalam, he had a son by name P.K.Muthaiyan, the plaintiff herein. Through his second wife Mariyayee, he had a son by name Subramani, the defendant herein, and two daughters, namely, Parameshwari and Pushpa. It is further stated that Muthuveeran, the father of Periyakaruppan, had a brother by name Periyanna Vathiyar, who had a wife by name Chinnaponnu Ammal and a daughter by name Achammal. Since the said Periyanna Vathiyar had no male issue, he adopted his brother’s son Periyakaruppan. Thereafter, the said Periyakaruppan married the two granddaughters of Periyanna Vathiyar, namely, Kamalam and Mariyayee.

12. It is the specific case of the plaintiff that Periyanna Vathiyar executed a registered Will dated 05.09.1938, marked as Ex.A1, under which the suit properties were set apart for the charitable purposes mentioned therein. According to the plaintiff, after the death of his father Periyakaruppan, he, being the eldest son and male member of the family, has been administering the suit properties in terms of the said Will and has been performing the obligations to the local temple as contemplated therein. It is further stated that the Revenue Authorities have granted patta in favour of the plaintiff, and that he has been paying the necessary taxes to the Government.

13. According to the plaintiff, he has been performing the obligation stipulated in the Will for the charitable purposes mentioned therein. No doubt, the defendant has disputed the same. However, the defendant's witness D.W.2 in his evidence would say,



14. It is not the case of the defendant that he has been performing the charitable activities as contemplated under the Will. He has admitted that he was born after the plaintiff. As rightly contended by the learned counsel for the plaintiff, the plaintiff being the elder son alone is entitled to retain the property for carrying out the charitable activities as stipulated in the Will.

15. As already pointed out, the defendant in the written statement has denied and disputed the Ex.A.1 Will. But, in his evidence, he would admit the Will and the relevant portion is extracted hereunder : 

     

  16. Considering the above, it is pertinent to note that the defendant has specifically admitted the Will under Ex.A.1 and has stated that he had sold the properties obtained under the Will. It is also necessary to mention that an extent of 1.22 acres in Re-survey No.331-1A (New Survey No.250/1A) and an extent of 1.45 acres in Re-survey No.331-1C (New Survey No.250/1C) totalling 2.67 acres situated in Santhapuram Village, Adavatur group villages, Srirangam Taluk, Tiruchirappalli District, have been shown as the suit properties.

17. The defendant in his written submissions has stated that in the oral partition entered into between himself and the plaintiff, he was allotted an extent of 40 cents in S.No.331/1C and that since then he has been in possession and enjoyment of the said property. Considering the above, it is clear that the defendant has not disputed the plaintiff's right to possession and possession over the remaining extent of the suit property and that he claims possession only in respect of 40 cents in a portion of the suit property.

18. As rightly observed by the learned trial Judge, the defendant has not elaborated his plea any further. The defendant has not stated where the said 40 cents of land is situated, its boundaries, the nature of the land or the manner in which, he has been in possession and enjoyment of the same.

19. As rightly contended by the learned counsel for the plaintiff, the plaintiff has produced the patta pass book under Ex.A.2 and tax receipt under Ex.A.5 to prove his possession. No doubt, the defendant has produced a joint patta, but as rightly observed by the learned trial Judge, the same does not contain either the date of issuance or the name of the issuing authority.

20. Moreover, Ex.B.1, as rightly pointed out by the learned counsel for the plaintiff, it is shown that the defendant has joint right ($l;Lg;gl;lh) in S.No.250/1A and 250/1C. However, as already pointed out, the defendant himself, in his written statement, has claimed only 40 cents in S.No.331-1C (New S.No.250/1C) and has not made any claim in respect of S.No.331/1A (New S.No. 250/1A. The learned trial Judge has rightly considered and rejected the said contention. Except Ex.B.1 the defendant has not produced even an iota of evidence to prove that he has been in possession and enjoyment of the 40 cents of land claimed by him.

21. It is pertinent to mention that the learned trial Judge mainly observed that the plaintiff had not proved the Will in the manner contemplated under Sections 68 and 69 of Indian Evidence Act and on that ground, dismissed the suit. In the present case, the plaintiff has asserted his right to possession and enjoyment of the suit property through a Will said to have been executed on 05.09.1938, under which the suit property was set apart for charitable purposes, and the elder members of the family were authorized to administer the properties and carry out the said charitable obligations.

22. No doubt, the said Will has not been proved in the manner known to law by examining any of the attesting witnesses, as contemplated under Section 68 of the Indian Evidence Act. Thus, the mandatory mode of proof contemplated under the said provision has not been complied with.

23. It is further pertinent to note that the plaintiff does not claim any absolute ownership over the suit property in his individual capacity and his case is only to the effect that being the elder family member of the family, he has been in possession and enjoyment of the suit property and has been administering the same for the charitable purposes contemplated under the Will.

24. It is pertinent to note that, though the plaintiff claims to be performing the duties in respect of the suit property, the defendant has categorically admitted that both he and the plaintiff have derived certain properties under the very same Will. He has also admitted that he had sold some of the properties obtained under the said Will. Having thus admitted the common source of title, the defendant cannot be permitted to insist upon strict proof of the Will as against the plaintiff, particularly when he himself claims a right over 40 cents out of the total extent of 2.67 acres in the suit property on the basis of an oral partition alleged to have taken place between himself and the plaintiff.

25. When the defendant pleads such an oral partition and claims separate possession of a portion of the property, the burden clearly lies upon him to establish the same by adducing acceptable legal evidence. In the absence of any evidence to discharge such burden and to prove his peaceful possession over the said extent, the contention of the defendant in this regard cannot be countenanced.

26. Insofar as the present suit for permanent injunction is concerned, the primary issue for consideration is whether the plaintiff was in lawful and settled possession of the suit property as on the date of filing of the suit.

27. As already pointed out, in order to establish his possession, the plaintiff has produced the patta passbook and tax receipts standing in his name. Though the said documents may not, by themselves, confer title, they are certainly relevant pieces of evidence to establish possession. It is well settled that in a suit for bare permanent injunction, the primary issue for consideration is the possession of the plaintiff as on the date of filing of the suit. In the present case, the mere failure on the part of the plaintiff to prove the Will in accordance with Sections 68 and 69 of the Indian Evidence Act would only disentitle him from establishing absolute title based upon the said Will. However, the same cannot be held to be fatal to the plaintiff’s case in a suit for permanent injunction, particularly when his possession over the suit property in a representative capacity stands established by the revenue records, and the defendant has failed to prove his plea of oral partition and his alleged separate possession of 40 cents by adducing acceptable evidence. Hence, the finding of the learned first appellate Judge that the plaintiff has proved his possession and is entitled to the relief of permanent injunction cannot be found fault with.

28. Considering the facts and circumstances of the case, this Court further holds that the plaintiff is entitled to costs throughout. Accordingly, the Substantial Questions of Law are answered.

29. In the result, the Second Appeal is dismissed and the judgment and decree dated 24.03.2014 passed in A.S.No.2 of 2014 on the file of the Principal Subordinate Court, Tiruchirappalli, reversing the judgment and decree dated 20.09.2013 passed in O.S.No.828 of 2009 on the file of the III Additional District Munsif Court, Tiruchirappalli, are hereby confirmed. The plaintiffs are entitled to costs throughout.