(Prayer:Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgement and Decree passed by the learned Additional Sub-Judge, Dindigul in A.S.No.98 of 2013 dated 08.07.2014 by confirming the Decree and Judgment passed by the learned District Munsif Court, Nilakkottai in O.S.No.224 of 2008 dated 30.07.2014.)
1. The plaintiff in the suit in O.S.No.224 of 2008 is the appellant in this second appeal.
2. Brief facts that are necessary for the disposal of the second appeal are as follows:
2.1. The appellant herein has filed a suit in O.S.No.224 of 2008 for granting a decree for permanent injunction, restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. The suit property is a residential house wherein the appellant claims that he is in enjoyment.
2.2. It is the case of the appellant that the suit property originally belonged to his maternal grandfather, by name, late.Durairaj Servai. It is the further case of appellant that his mother Rajalakshmi, gave about 17 sovereigns of gold to his maternal grandfather and purchased the suit property by way of oral sale in the year 1961. The appellant claimed that he was in enjoyment of the suit property for more than 45 years as the owner and that he had prescribed title by adverse possession.
2.3. The first defendant being the son of Durai Servai, disputed the case of the plaintiff in toto and pleaded that the first respondent was in absolute possession for more than five decades and he had already executed a sale deed in favour of the second defendant on 24.12.2008. It is the further case of defendants that pursuant to the sale deed that was executed by the first defendant, the second defendant had applied for mutation of revenue records and got change in favour of the second defendant.
2.4. The case of the second defendant was also to the effect that the second defendant is paying the property tax and water tax etc., and that the second defendant's name is registered in all Municipal records. Since it is the common case of both the defendants that all other heirs except the mother of the plaintiff, had executed the release deed in favour of the first defendant, the first defendant had acquired full rights in respect of the entire suit properties from all other legal heirs of plaintiff's maternal grandfather and hence, they prayed for dismissal of the suit.
3. The trial Court upon considering the pleadings and evidence dismissed the suit. On appeal by the plaintiffs, the appellate Court has also dismissed the first appeal in A.S.No.98 of 2013 by a judgment and decree dated 08.07.2014.
4. Aggrieved by the same, the present second appeal has been filed, raising the following substantial questions of law:
"1) Whether the court's below right in dismissing the case filed by the appellant as he has proved the possession and enjoyment over the suit property?
2) Whether the courts below are right in dismissing the suit and appeal as the appellant has proved his continuous possession in the suit property, by more than 50 years, by substantiating the claim through relevant material?
3) Whether the courts below right in dismissing the suit and appeal on the ground that the appellant did not prove his title over the suit property that too in a case of permanent injunction?
4)Whether the courts right in dismissing the case, on the ground that the petitioner having no title over the suit property and declaring the respondents are proved their title, that too in a case of permanent injunction?"
5. Heard the learned Counsel for the appellant as well as the learned Counsel for the respondents.
6. It is pertinent to note that both the Courts below have concurrently held that the plaintiff has not acquired any right over any portion of the suit property. The oral sale pleaded by the plaintiff is disbelieved by both the Courts below. The plea of first defendant that the suit property is the ancestral property of the first defendant/first respondent herein in this appeal has been accepted by the Courts below on appreciation of the pleadings, evidence and the deposition of witnesses. The trial Court as well as the appellate Court have considered the issues in the light of pleadings and evidence both oral and documentary.
7. It is a settled proposition of law that the plaintiff has to prove his case and he cannot take advantage of the defects in the case of the defendants. The plaintiff who came forward with the suit for bare injunction can succeed only if he is able to prove his title or lawful enjoyment in the manner known to law.
8. Having regard to the findings of the Courts below that the suit property is not in lawful enjoyment of the plaintiff, this Court is of the view that the contention of the appellant that he has been in enjoyment of the suit property for a period of more than 40 years without any iota of evidence to prove his title, has no legal basis. Even in the case of bare injunction, when the relief sought for is on the basis of title, the plaintiff has to establish his title. All the questions of law raised in the above appeal are required to be answered against the appellant as they are framed on an erroneous impression about the settled principles of law. Mere possession for any number of years will not entitle a person to seek injunction against a true owner. A person can maintain a suit for bare injunction against any person who has no better title but not against a true owner. The question of title can be gone into incidentally even in a suit for permanent injunction as the person who seeks such prayer has to prove his possession as lawful. It is also settled position of law that possession follows title.
9. For all the above reasons, this Second Appeal is dismissed. However, there is no order as to costs.