GANESAN Vs. AATHIMOOLA PANDITHAN

JUDGEMENT

(1.) THE unsuccessful first defendant before the Courts below has come forward to file this Second Appeal. THE plaintiffs filed a suit in O.S.No.481 of 1993, seeking the relief of permanent injunction, which has been decreed and the same was also confirmed by the lower appellate Court. Being aggrieved against the concurrent decisions of the Courts below, the appellant has come forward to file the Second Appeal by formulating the following question of law:

(2.) THE suit has been filed by the respondents being the plaintiffs seeking the relief of permanent injunction. It is the case of the plaintiffs that the suit property was an ancestral property belonging to the grand father of both the plaintiffs and the defendants. THEre was a partition between the father of the plaintiffs and the father of the defendants, who were brothers. In pursuant to the said oral partition, the plaintiffs are entitled for the suit property. In support of their contention, the plaintiffs have filed two documents, namely Exs.A.1 and A.2. Ex.A.1 is the Patta Pass Book and Ex.A.2 is the registered partition deed between the first appellant being the first defendant and the second defendant.

(3.) THE learned counsel for the appellant submitted that the documents filed under Exs.B.1 to B.7 clearly proved the factum of possession and therefore, the suit for injunction is not maintainable in law and on facts. Considering the denial of title raised by the appellant, the suit as filed is not maintainable as the plaintiffs ought to have filed the same seeking declaration or partition as the case may be. THE Commissioner's Report has been wrongly misconstrued by the Courts below. Even as per the Commissioner's Report, the appellant would be loosing a further extent of land as stipulated under Ex.A.2. THE learned counsel further submitted that being the plaintiffs it is for the respondent 1 and 2 to prove the partition between the parties. THErefore, the Courts below have committed an error in shifting the onus on the defendants. Further, Ex.A.2 does not deal with the suit property. In support of his contention, the learned counsel relied on the judgment of the Hon'ble Apex Court in AnathulaSudhakar v. P.Buchi Reddy (Dead) By LRs & Ors., 2009-2-L.W. 546 and submitted that the Second Appeal will have to be allowed.