- (1.) BEING aggrieved by the judgment in A.S.No.93 of 2005 reversing the judgment of the trial Court in O.S.No.99 of 2002 and dismissing appellant's/plaintiff's suit for permanent injunction, unsuccessful plaintiff has filed this Second Appeal. For convenience, parties are referred in their original rank in the suit.
(2.) SUIT property relates to 2.21 acres comprised in S.F.No.78/4B of Kainur Village. The case of the plaintiff is that suit property was the self acquired property of the defendant's father Ponnan and the said Ponnan sold the suit property to plaintiff's father Munusamy under Ex.A1 sale deed dated 21.10.1962. After purchase, the plaintiff's father was in possession and enjoyment of said extent of 2.21 acres. The plaintiff's father died intestate on 17.04.2001 leaving behind his wife Muthubackiammal, sons namely plaintiff and other sons and daughters. The plaintiff's mother Muthubackiammal also died intestate. Plaintiff and his brothers and sisters are in joint possession and enjoyment of the suit property. A portion of the suit land was converted into plots and the plaintiff being Power of Attorney of his brothers and sisters had also sold away 16 plots to third parties and the said third parties are in possession and enjoyment of the said plots purchased by them. The defendant who is son of vendor Ponnan has no right, title or interest over the suit property and while so the defendant is unlawfully attempting to interfere with the plaintiff's possession and enjoyment of the suit property and hence the suit for permanent injunction. The respondent/defendant resisted the suit contending that suit property in S.No.78/4B was assigned to defendant's father by the government on condition that it should not be alienated/mortgaged to anybody else and therefore Ex.A1 sale deed (dated 29.10.1962) executed by late Ponnan will not bind the defendant, since it is against the conditions of Assignment. In the Written Statement, it is further averred that Ex.A1 sale deed in the name of the plaintiff's father is invalid, inoperative and not binding upon the defendant. The defendant denied having threatened to interfere with the possession of the suit property particularly of third parties, who purchased the plots from the plaintiff. On the above pleadings, trial Court framed two issues. On plaintiff's side, plaintiff was examined as PW.1 and another Witness as PW.2 and Ex.A1 to Ex.A15 were marked. On the defendant's side, DW.1 (defendant) to DW.3 were examined and Ex.B1 to Ex.B5 were marked. Upon consideration of oral and documentary evidence, trial Court held that even though suit property was assigned to defendant's father Ponnan, the same was sold for valuable consideration to the plaintiff's father Munusamy. Based upon evidence, trial Court further held that after death of Munusamy, plaintiff and his brothers and sisters were in joint possession and enjoyment of the suit property. Referring to Exs.A2 to A6, patta and kist receipts, trial Court held that plaintiff has established his possession and enjoyment in the suit property and that defendant has no manner of right or interest to interfere with the plaintiff's possession and on those findings decreed the suit granting permanent injunction.
(3.) BEING aggrieved, the defendant preferred Appeal in A.S.No.93 of 2005. Observing that a portion of the suit property was divided into plots and 16 plots were sold to third parties, the lower Appellate Court held that without impleading those 16 persons, the suit as framed is bad for non-joinder of necessary parties. It was further held that without impleading those 16 purchasers, the plaintiff cannot claim to be in possession of the entire extent of the property and therefore the plaintiff would not be entitled to permanent injunction and the first Appellate Court reversed the findings of the trial Court and allowed the Appeal. Unsuccessful plaintiff has filed this Second Appeal. At the time of admission of the Second Appeal, the following substantial questions of law was formulated for consideration:-a) Has not the Plaintiff/Appellant proved his possession of the suit Property, as per Ex.B.3 Lawyer Notice dated 13.09.2001 issued by the Defendant to the Plaintiff, directing the Plaintiff to deliver possession?b) Has not the Appellate Court erred in allowing the Appeal, on the technical ground of not impleading the Purchasers when the Plaintiff proved possession of the property?".;