Judgment : 1. The second defendant in O.S.No.63 of 1987 on the file of the Subordinate Judge, Pudukottai, is the appellant in the Second Appeal. The respondent herein filed the said suit for an injunction restraining the defendants in the suit who were respectively father and son from putting up any construction in the suit property belonging to him. 2. The case as set out in the plaint is as follows: The suit property belongs to the plaintiff. After the death of his father, he became entitled to it and he is in enjoyment paying kist, etc. His father and the first defendant were brothers. There was a partition between the plaintiffs father and the first defendant about 45 years prior to the suit and in that partition the suit property was allotted to the plaintiffs father. There are three houses in the suit property one of which is occupied by the plaintiff, the other two houses have been let out to the first defendant on a monthly basis. The defendants have not been paying the rent. The plaintiff would be taking separate proceedings for their eviction. As the defendants are attempting to put up construction, the suit is being filed for an injunction. 3. The defence as set out in the written statement is as follows: The relationship set out in the plaint is admitted. There was indeed a partition between the brothers, but in the partition the two survey numbers, viz., S.No.398/3 and S.No.398/4 were treated as a single unit and divided into four parts and the parts were in enjoyment in the manner set out in the sketch attached to the written statement. Though the plaintiff was given patta for the suit property and the patta for the northern property was given to the first defendant, the plaintiff cannot claim title on the basis of the patta issued to him. It is also not correct to say that all the three houses in the suit property belonged to the plaintiff. Only the western house belongs to the plaintiff. The plaintiff is paying tax only for that. As regards the other two houses, the tax is paid by the first defendant. In the Panchayat Register also only the first defendants name figures. It is not correct to say that the defendants have been paying rent to the plaintiff for the houses in their occupation. The plaintiff is paying tax only for that. As regards the other two houses, the tax is paid by the first defendant. In the Panchayat Register also only the first defendants name figures. It is not correct to say that the defendants have been paying rent to the plaintiff for the houses in their occupation. The first defendants family is rather large and for additional occupation the defendants want to put up a house and for that purpose they have procured materials. With a view to prevent this, the plaintiff has filed the suit. The suit property has also become the property of the defendants on the basis of their possession. Mere prayer for injunction cannot be maintained. 4. The learned Subordinate Judge, PuduKottai, on the pleadings framed the necessary issues and on the basis of the oral and documentary evidence, granted the prayer against the second defendant, the present appellant, the first defendant having died in the meantime. The second defendant filed appeal A.S.No.64 of 1988 before the District Court, Pudukottai. The learned District Judge, Pudukottai, by judgment and decree dated 22. 1989 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present Second Appeal has been filed. .5. At the time of admission the following substantial question of law was raised for consideration in the Second Appeal: .When the plaintiff himself admits possession of the suit property by the defendants for over 20 years claiming exclusive right, is a suit in which the only relief asked for was permanent injunction, maintainablee .6. Mrs.Pushpa Satyanarayana, learned counsel for the appellant, made the following submissions: .The courts below failed to see that the appellant is in possession of the suit property in his own right from the date of partition and has prescribed title by adverse possession. When the courts below have noticed that the plaintiff has admitted the possession of the suit property by the defendants, the suit as framed is not maintainable. The courts below erred in accepting the case of the plaintiff that the houses were leased out to the defendants in the absence of any acceptable evidence. In any event, according to the learned counsel, on the admitted case of the plaintiff the courts below ought to have held that the second defendant/appellant has prescribed title by adverse possession. .7. The courts below erred in accepting the case of the plaintiff that the houses were leased out to the defendants in the absence of any acceptable evidence. In any event, according to the learned counsel, on the admitted case of the plaintiff the courts below ought to have held that the second defendant/appellant has prescribed title by adverse possession. .7. The definite case of the plaintiff is that in a partition between his father and the first defendant about 45 years prior to the suit, the suit property fell to his fathers share. That there was a partition is admitted by both sides. As regards the allotment, the case of the plaintiff is that his father was allotted the southern survey number, while the first defendant was allotted the northern survey number. According to the second defendant-appellant, the two survey numbers were treated as a single unit and the 34 cents adjacent to the road on the west was allotted to the first defendant, 74 cents in the middle were allotted to the plaintiffs father and the balance 40 cents on the eastern side were allotted to the first defendant and in respect of the eastern property, northern 1.45 acres were allotted to the first defendant and the southern 1.45 acres to the plaintiffs father. So far as the defendants are concerned, absolutely no material is produced to substantiate their contention that the properties were divided in the manner alleged by them. However, in support of the plaintiffs case, the plaintiff as P.W.1 has spoken to the division and as to how in the resurvey for the entire extent of S.No.394/4 his father was given patta and the first defendant was given patta for S.No.398/3. It was not at all challenged in cross-examination. In fact, it is admitted on the side of the defendants that for the entire S.No.398/4 patta stands in the name of the plaintiffs father and for S.No.398/3 in the name of the first defendant. If as alleged by the defendants, the allotment was in any way different from what the pattas show, the onus was entirely on the defendants to substantiate the same. This onus has not been discharged on the side of the defendants. Originally the patta for S.No.398/4 was in the name of the plaintiffs father. After his death, it was changed to Patta No.676 in the name of the plaintiff. This onus has not been discharged on the side of the defendants. Originally the patta for S.No.398/4 was in the name of the plaintiffs father. After his death, it was changed to Patta No.676 in the name of the plaintiff. This is substantiated by Ex.A-2 extract from Land Records Register. Even till 1978 there was no change in the manner alleged by the defendants. For the entire S.No.398/4 for 2.31 acres Patta stands in the name of the plaintiff in Patta No.676. From the Patta Book it is seen that he had got that property by inheritance. Exs.A-5 and A-6 are the kist receipts relating to this patta produced by the plaintiff. That even in Fasli 1391 the plaintiff was in possession of the suit property is seen from Ex.A-3 adangal extract. The suit was filed in the year 1983. None of the documents produced on the side of the defendants is prior to the suit. Ex.B-9 is dated 10. 1985 which is subsequent to the suit and which, no doubt, shows that for S.Nos.398/4-A, 398/4-B and 398/4-D the second defendant has been issued patta. That will not in any way advance the case of the defendants for obvious reasons. Thus the case as put forward by the plaintiff is fully substantiated. The courts below have rightly found that the partition between the plaintiffs father and the first defendant was in the manner averred by the plaintiff. 8. It is admitted on all hands that the houses which are claimed by the defendants as their own houses are put up in the suit property. The defendants attempted to show that these houses belong to them by production of certain house tax receipts. A perusal of the various receipts produced by the defendants clearly show that they do not relate to the suit houses at all. They relate to some other houses in the village. This is in conformity with the case of the plaintiff that certain house situate in the village was allotted to the share of the first defendant. Those receipts must be referable only to the ancestral house allotted to the first defendant in the village. 9. Then the question boils down to the defendants establishing that they are in possession in their own right. This they have not done. They have not produced any adangal. Those receipts must be referable only to the ancestral house allotted to the first defendant in the village. 9. Then the question boils down to the defendants establishing that they are in possession in their own right. This they have not done. They have not produced any adangal. They have not produced any other document to show that they are in possession in their own right. It has already been noticed that till Fasli 1391 the plaintiff has produced documents to show his possession. The conclusion reached by the Courts below cannot at all be faulted. 10. The learned Counsel for the appellant relying on Govindammal (died) and 3 others v. Arumugham Govindammal (died) and 3 others v. Arumugham Govindammal (died) and 3 others v. Arumugham , (1998)2 MLJ. 254: (1998)1 C.T.C. 501 submitted that in the present suit for bare injunction, the courts below exceeded their limits in going into the question of title, deciding the same and granting relief to the plaintiff. In that case, both parties derived title from the same erstwhile owner under different sale deeds and one of them filed the suit for mere recovery of possession as per plaint plan after removal of the shed put on the basis of the sale deed while the other party disputed the title of the plaintiff and asserted title for himself by virtue of his sale deed. Raju, J. (as the learned Judge then was) held that: “The suit for recovery of possession “straightaway itself” was a misconceived remedy in the facts and the circumstances of the case and it was inappropriate also for the two courts below to have chosen to deal with the claim of the parties as though it was for declaration of title when it was only a bare suit for recovery of possession in which the question of prima facie title alone could be gone into incidentally and no final adjudication or declaration of title could be made.” Paragraph 8 of the said judgment is worth extracting. “8. The learned counsel appearing on either side could not succeed insufficiently explaining before this court on the basis of the material as to the manner of partition of the property, though it is admitted even by the plaintiff that the original owners and their successors in interest get the property divided into three shares. “8. The learned counsel appearing on either side could not succeed insufficiently explaining before this court on the basis of the material as to the manner of partition of the property, though it is admitted even by the plaintiff that the original owners and their successors in interest get the property divided into three shares. Except, the conflicting oral evidence and recitals in one or other of the documents, there is absolutely no documentary evidence to prove the divisions by metes and bounds and any proof of such divisions fixing up of boundaries for their respective portion. In the above circumstances their rights would and could be got indicated by having recourse to a suit for partition only wherein the claims of both portion could be effectively adjudicated. If any such suit for partition is filed, the court dealing with the same shall consider the same and adjudicate the issue raised in such proceedings on the materials placed before it and in accordance with the law uninfluenced by the observations made in judgments of the Courts below. If the property has been so got divided into three shares, the parties on either side can claim possession from one or other of the three shares.” 11. It was in those circumstances, the learned Judge observed that the remedy was by way of filing a suit for partition. The facts of the case dealt with by the learned Judge are clearly distinguishable from the facts of the present case. In the present case, the parties had gone the whole hog, produced documents, let in elaborate oral evidence and invited the decision. It is highly improper and inequitable now to turn round and say that the dispute should be thrashed out only in a properly constituted suit for declaration of title and recovery of possession. .12. It has been held in Sulochana Amma v. Narayanan Nair , A.I.R. 1994 S.C. 152 that: .“In a suit for injunction when title its as issue for the purpose of granting injunction, the issue directly and substantially arises in the suit between the parties and in a later action between the parties, the decision in the injunction suit would operate as res judicata.” .13. In Palaniammal v. Pechimuthu and 3 others Palaniammal v. Pechimuthu and 3 others Palaniammal v. Pechimuthu and 3 others , (1991)1 L.W. 371 , Srinivasan, J. (as the learned Judge then was) in a suit for injunction restraining the defendant from interfering with plaintiffs possession and for a mandatory injunction for removal of the construction already made by defendant, the plea on behalf of the defendant that the plaint averment constituted admission about the defendants trespass and therefore without a prayer for declaration of title and recovery of possession, the prayer for bare injunction was not maintainable, was rejected by the learned Judge. 14. The present case is almost similar to the case decided by Srinivasan, J. The learned counsel for the appellant sought to distinguish the case by submitting that in that case the encroachment itself was by commencement of the construction on the disputed property and that it is not so in the instant case. Even in the case before Srinivasan, J. (as the learned Judge then was) title was disputed and the defendant contended that the suit should have been for declaration of title. This contention was rejected. It should also be noticed that the question of title was also gone into and the finding reached by the courts below that the plaintiffs in that case proved their title by producing documents and the defendants had failed to prove their title to the disputed property. In the present case, the specific stand of the defendants is that they are in possession in their own right while the evidence proves that their claim is false and the plaintiff has reserved his right to proceed against the defendants separately for recovery of possession and as the defendants attempted to put up construction, for want of time he rushed to the court seeking injunction. The distinction pointed out by the learned counsel for the appellant is without a difference. The decision squarely applies to the facts of the present case. 15. It is next contended by the learned counsel for the appellant that in a suit for injunction, the burden is on the plaintiff to prove his case and the mere fact that the defendants failed to prove their case could not be a ground for granting relief to the plaintiff. 15. It is next contended by the learned counsel for the appellant that in a suit for injunction, the burden is on the plaintiff to prove his case and the mere fact that the defendants failed to prove their case could not be a ground for granting relief to the plaintiff. In support of this contention, the learned counsel relied on the judgment of S.S.Subramani, J. in Chelladurai and others v. Perumal Nadar Chelladurai and others v. Perumal Nadar Chelladurai and others v. Perumal Nadar , (1998)3 MLJ. 567 . The learned Judge has held that: “In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of the suit.” The learned Judge has further observed that: “only when evidence on both sides are even title to the property will have some relevance.” It has also been laid down in the case that merely because the defendant has failed to prove his case, it does not follow that the plaintiff is in possession. Indeed, as pointed out by the learned Judge, in a suit for injunction the burden is only on the plaintiff to prove that he is in exclusive possession of the property. As a proposition of law this is as ancient as the hills. But then this is not a case where the plaintiff is abandoning his stand seeking relief on the basis of the defects in the case of the defendant. This is a case where on the basis of the documents produced and the oral evidence adduced the court comes to a conclusion. This the court is entitled to do has sanction. Vide: (1) Subramania Mudaliar v. Ammapet Co-operative Weavers Production and Sales Society Subramania Mudaliar v. Ammapet Co-operative Weavers Production and Sales Society Subramania Mudaliar v. Ammapet Co-operative Weavers Production and Sales Society , (1960)2 MLJ. 477 . (2) Madhavan and Rajeswari v. Dhanammal , (1994)1 MLJ. 401 . Decisions have gone to the extent of saying that the principle that one party cannot abandon his own case and claim relief on the basis of the other partys plea is not applicable where only party does not seek relief on the basis of the plea of the other party, but only on the facts established on record, though they are at variance with the pleading. There is no variance in the present case between pleading and proof. 16. The learned counsel relied on my judgment in V.Manakkan and others v. Veera Perumal V.Manakkan and others v. Veera Perumal V.Manakkan and others v. Veera Perumal , (1998)3 MLJ. 577 : (1998)2 C.T.C. 157 . There is absolutely no doubt that findings without pleadings and misreading of documents would constitute error of law warranting interference under Sec.100 of the Code of Civil Procedure. However, in the instant case, there has been pleading and there has been no misreading of documents. 17. In the present case, it is found that the suit property belongs to the plaintiff and it is his further case that the defendants were tenants and which status was attempted to be abused by collecting materials in the property for putting up construction. 18. The substantial question of law raised in the Second Appeal is answered against the appellant and the Second Appeal is dismissed. There will be no order as to costs.