Judgment G.M. Akbar Ali, J. Second Appeal preferred against the judgment and decree dated 21. 2005 made in A.S.No.30 of 2004 on the file of the learned Additional Subordinate Judge, Thanjavur reversing the judgment and decree dated 18. 2004 on the file of the learned District Munisif, Thanjavur. .2. The plaintiff is the appellant. The brief facts of the case are as follows: .The suit is for a bare injunction. The suit property is an extent of 42 cents (18,245 sq.ft) in T.S. No.3073/2 in Karanthatankudi village at Thanjavur. According to the plaintiff, a total extent 3 acre 42 cents in T.S. No.3073 was assigned to his father under G.O. Ms.No.1300 on the basis of Tamil Nadu Estate Abolition (Conversion into Ryotwary) Act (26 of 1948) (hereinafter called as “Act”) and the patta No.228 was given to him. The said survey was sub divided as 3073/2 for an extent of 42 cents given by way of settlement to the appellant and patta no. 2033 was assigned. According to the appellant, the respondent has no right, title and possession in the suit property. However, he interfered with peaceful possession of the appellant. Therefore, a bare suit for injunction has been filed. .3. The suit was resisted by the sole respondent. The assignment and the patta issued under G.O. Ms. No.1300 in the name of the appellant’s father was denied. According to the respondent, the appellant’s father, the respondent and another and one Senthil Kumar are brothers. On 28. 1975, the respondent and Senthil purchased each 1.71 cents in T.S. No.3073 from one Sankarai Ammal under registed Sale Deeds. The appellant’s father purchased T.S. No.3077/1. In T.S. No.3073, 1.71 cents was allocated to the respondent on the Southern side and the Northern side was allotted to Senthil. The respondent is in possession and enjoyment of the said 1.71 cents in T.S. No.3073. The alleged interference with possession was denied as false. 4. On the basis of the above averments, the learned District Munisif framed one trialble is sue namely whether the plaintiff is entitled for permanent injunction and proceeded to decide the case. 5. The respondent is in possession and enjoyment of the said 1.71 cents in T.S. No.3073. The alleged interference with possession was denied as false. 4. On the basis of the above averments, the learned District Munisif framed one trialble is sue namely whether the plaintiff is entitled for permanent injunction and proceeded to decide the case. 5. At the outset, the learned trial Judge found that the appellant had approached the Court on the basis of revenue documents and also on the basis of a settlement deed to show his prima facie, title and possession and on the other hand the respondent had set up an independent title under a sale deed dated 28. 1975. The suit being injunction simplicitor, the learned District Munisif proceeded on the basis of prima facie title and possession and finding on the substantive title is not necessary. On the basis of the documents produced by the appellant, the trial Court found that the appellant was in possession and enjoyment of the property and therefore, held that he is entitled for an injunction and has decreed the suit. The trial Court has also observed that it is for the respondent to establish his title independently in the appropriate forum. 6. Aggrieved by the decree and judgment, the respondent preferred an appeal before the learned Additional Sub Judge, Thanjavur. The first appellate Court discussed in detail about the various documents produced by either side and has also discussed the title and found that the respondents had established their title and possession and the appellant or his father cannot establish title under a patta given under G.O. Ms.1300. The first appellate Court has also relied on the Commissioner’s report for possession and reversed the decree passed by the trial Court. 7. Aggrieved by which, the plaintiff has approached this Court by way of Second Appeal on various grounds and more particularly, on the ground that in a suit for injunction simplicitor the conclusive determination of the title to the property is not called for. 8. On admission, the following substantial questions of law have been framed: 1. 7. Aggrieved by which, the plaintiff has approached this Court by way of Second Appeal on various grounds and more particularly, on the ground that in a suit for injunction simplicitor the conclusive determination of the title to the property is not called for. 8. On admission, the following substantial questions of law have been framed: 1. Whether, in view of the settled position of law that in a suit for mere injunction the conclusive determination of title to the property is not called from the judgment and decree of the lower appellate Court is correct and consequently the decree of the lower appellate Court setting aside the decree for permanent injunction by the trial Court on virtual declaration of a defendant title to the property is unsustainable in law? 2. Whether, the lower appellate Court is right in rejecting the order passed under Exhibit A-19 and virtually setting it aside when G.O. Ms. No.1300 itself provides for an appeal to the higher forum? 3. Whether, the failure of the lower appellate Court to consider the pleadings, and the oral and the documentary evidence on record more particularly the documents produced by the plaintiff and the deposition of the P.Ws.1 and 2 and D.W.1 with reference to the position of law had not made its judgment incorrect and unsustainable? 9. It is admitted that T.S. No.3073 is a large extent of 3 acres 42 cents. It is admitted that the appellant’s father, the respondent and one Senthil purchased properties from one Sankari Ammal under a valid sale deed in (sic) the year 1975. it is not in dispute that in 1977, a patta was granted to the appellant’s father under G.O.Ms.No.1300. The appellant’s father had settled the present extent of 42 cents in favour of the appellant by a registered settlement deed dated 25. 1995. The appellant claims title and possession under this document and on the patta issued to his father. 10. On the contrary, the respondent claims under the sale deed. He had purchased the property along with his brother and southern portion was allotted to him and he is in possession and enjoyment and the alleged patta under G.O.Ms.No.1300 is not a document of title and therefore, disputes the claim. 10. On the contrary, the respondent claims under the sale deed. He had purchased the property along with his brother and southern portion was allotted to him and he is in possession and enjoyment and the alleged patta under G.O.Ms.No.1300 is not a document of title and therefore, disputes the claim. Therefore, the point is to be considered is whether the patta issued under G.O.Ms.No.1300 confers any title to the appellant’s father and whether the appellant has established prima facie title and possession in a suit for injunction simplicitor. 11. Mr. K. Subramanian, learned counsel for the appellant submitted that the property comes under the purview of Act 26 of 48, (tamil Nadu Estates, Abolition and Conversion in Ryotwari) Act. The learned counsel pointed out under G.O.Ms.No.1300 dated 30.4.1971 a ryotowari patta was given to the appellant’s father. The learned counsel pointed out that once the property is vested to the person who is issued with ryotwari patta, it is a document of title. Therefore, the counsel contended that the appellant has proved prima facie title and passion and the well considered judgment of the trial Court should not have been interfered by the first appellate Court. The learned counsel pointed out that the first appellate Court, in its judgment, which runs into several pages, had discussed in detail about the title and has determined the title in favour of the respondent. The learned counsel pointed out that the suit survey number of larger extent of 3 acres 42 cents was assigned to the father of the appellant under G.O.Ms. No.1300. The learned counsel submitted that the title of the property vested with the appellant’s father, which was again transferred to the appellant and the appellant had proved his title and possession in a suit for injunction simplicitor. The learned counsel pointed out that the first appellate Court ought not have discussed the validity of an order passed in pursuant to G.O.Ms.No.1300 which conferred the title on the appellants father and set aside the ryotwary patta. .12. The learned counsel relied on the decision in B. Chandrasekaran and Another v. State of Tamil Nadu and 3 Others (2001) 3 LW 158 , wherein this Court has held as follows: .“15. The said Proceedings dated 211. .12. The learned counsel relied on the decision in B. Chandrasekaran and Another v. State of Tamil Nadu and 3 Others (2001) 3 LW 158 , wherein this Court has held as follows: .“15. The said Proceedings dated 211. 1983, granting patta by the fourth respondent, could be interfered only by the Board of Revenue (Settlement of Estates) Madras, namely, the second respondent, either suo motu or by an application by the aggrieved party. The said G.O does not prescribe any other method to interfere with the grant of patta by the fourth respondent.” .13. He also reliedon a decision in Kuppurama Mudaliar Versus Kailasam (died) and Others, (2006) 4 LW 818 wherein, this Court has held as follows: .“9. …Thus the finding of the first appellate Court that the plaintiff has not produced any document to prove his possession with regard to 24 cents without considering the A-register which shows the ownership and possession of the suit property by the plaintiff.” .14. He also relied on a decision in Muthu Goundar V. Poosari @ Palaniappan and 4 Others, (1998) 2 MLJ 351 : (1998) 2 LW 333 wherein this Court has held as follows at p. 354 of MLJ: .“10. ….Regarding the objection that since the present suit is only for bare injunction, there is no need to go into title, I am of the view that if sufficient proof is there on the side of the plaintiff with regard to his title apart from considering the evidence leading to injunction, it is open to the Courts to go into the title incidentally.” .15. He also relied on a decision in R. Justin Arulappa Versus R. Xavier Arulappa and Another, (2010) 1 MLJ 1176 : (2009) 5 LW 711 wherein this Court has held at p.1178 of MLJ: .“4. …It is rightly point by the learned counsel for the petitioner that the appointment of an Advocate Commissioner cannot be utilized for the purpose of gathering or collecting evidence by other party in any proceedings.” 16. On the contrary. Mr. S. Parthasarathy, learned Senior Counsel who appeared for the 1st respondent submitted that the title to the suit property has to be established by the person who asserts. On the contrary. Mr. S. Parthasarathy, learned Senior Counsel who appeared for the 1st respondent submitted that the title to the suit property has to be established by the person who asserts. The learned counsel pointed out that production of patta is not a litle to the suit property and in a suit for permanent injunction, the burden of proof lies on the party who asserts title and possession. 17. The learned senior counsel further pointed out that the 1st respondent had proved his title by producing not only his title deeds but also the prededcessor’s title deeds and therefore, the validity of a patta obtained in a revenue proceeding certainly has to be decided in a civil Court and the first appellate Court had rightly gone into the question. 18. The learned senior counsel submitted that the appellant ought to have filed a suit for declaration and for consequential relief when the respondent had set up a better title. 19. The learned counsel relied on the decision in Anathula Sudhakar Versus. P. Buchi Reddy (dead) by Lrs and Others, AIR 2008 SC 2033 : (2009) 1 MLJ 1001 wherein the Apex Court has held as follows at p.1010 of MLJ: “17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession, with or without any consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor .(b) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. .(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title either specific or implied as noticed in Annaimuthu Thevar (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction, .(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” .20. He also relied on Rame Gowda (D) by Lrs v. M. Varadappa Naidu (D) by Lrs. And Another (2004) 1 SCC 769 : (2004) 3 LW 143. wherein the Apex Court has observed as follows: .“Law presumes the possession to go with the title unless rebutted” 21. He also relied on Rame Gowda (D) by Lrs v. M. Varadappa Naidu (D) by Lrs. And Another (2004) 1 SCC 769 : (2004) 3 LW 143. wherein the Apex Court has observed as follows: .“Law presumes the possession to go with the title unless rebutted” 21. He also relied on a decision in Muthu Goundar Versus Poosari @ Palaniappan and 4 Others (supra) and Ramalinaam Versus Thiruvenkadam (2010) 1 LW 408 which are relied on by the appellants and said that the Court can go into the title in a suit for injunction and the burden is upon the person who asserts title and possession. 22. Heard both sides and perused the materials available on records. .23. The suit is filed by the appellant for a bare injunction regarding 42 cents of land in S.No. 3073/2. .According to the appellant, his father one S.K. Kandasamy Nadar was assigned a patta under G.O. Ms. No.1300 on 10. 1997 for T.S.No. 3073 of 3 acres 42 cents and S.No.3077/1 of an entent of 46 cents. According to the appellant, he settled 42 cents by a document dated 25. 1995 (Exhibit A-1) in his favour and the mutation of revenue records were effected and he is in possession and enjoyment. He has produced Exhibited A-2 “A” register dated 7. 1999 and the order of the Tahsildar granting sub division and patta under Exhibit A-3 dated 6. 1999 and Chitta extract for various pasalis under Exhibit A-4 to 10 and kist receipts for various years from 1977 to 1999 under Exhibit A-12 to A-18 are also filed. He has alleged an interference of his possession by the respondent and a complaint has been given under Exhibit A-22 dated 17. 1999 and immediately thereafter, the suit is filed. 24. On the contrary, the respondents have claimed that the suit property of a larger extent of 3 acres 42 cents in S.No.3073 and 46 cents of 3077/1 originally belonged to one Sankariammal, from whom the respondent and one Senthil, who are brothers, purchased 1 acres 71 cents each in S.No.3073 and the appellant’s father, who is the eldest brother, purchased 46 cents in S.No.3077/1 under registered sale deeds dated 28. 1975 which are marked as Exhibits A-14 to A-16. 25. The respondents have also produced the documents from the year 1937 tracing the title for Sankariammal. 1975 which are marked as Exhibits A-14 to A-16. 25. The respondents have also produced the documents from the year 1937 tracing the title for Sankariammal. According to the respondent, the suit property was originally patta lands belonged to Sankariammal and her predecessor-in-title and therefore, it will not come under the provisions of Act 26 of 48 and the patta under Exhibit A-19 had no relevance and therefore, the respondent have proved their title and possession. 26. As stated earlier, the trial Court had gone into the question of prima facie title and possession and left the larger issue of title open as there is a dispute between the parties. But, on the basis of settled possession in favour of the appellant, had granted the relief prayed for. As rightly pointed out by the learned counsel for the appellant, the first appellate Court had gone deeply into the question of title and has discussed various aspects of the validity of Exhibit A-19 patta and also the title deeds in favour of the respondents and ultimately decided the title in favour of the respondent and also found the possession in favour of the respondent, on the basis of the Advocate Commissioner’s report. 27. It is well settled that in a suit for injunction simplicitor, the plaintiff has to prove prima facie title and possession on the date of filing of the suit. It is also well settled that whether the plaintiff has a right for lawful possession is a question of title and it is open to the Court to go into the title incidentally in a suit for Injunction simpliciter. 28. In the case of Krishnan Versus Lakshmi Ammal, the decision of NAINAR SUNDARAM, J. (as he then was) which was (1989) 2 LW 76 Na (marked portion), which is as under: “In an identical circumstances, the learned Judge has concluded: “To have her possession protected the plaintiff has to demonstrate that her possession could not be unlawful. Hence for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into” 29. InRame Gowda (D) by lrs. Versus M. Varadappa Naidu (D) by Lrs. And Another (Supra), the Apex Court has held as follows: “9. Hence for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into” 29. InRame Gowda (D) by lrs. Versus M. Varadappa Naidu (D) by Lrs. And Another (Supra), the Apex Court has held as follows: “9. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.” 30. This Court in Muthu Goundar Versus Poosari @ Palaniappan and 4 Others (supra), held as follows: “Regarding the objection that since the present-suit is only for bare injunction, there is no need to go into title, I am of the view that if sufficient proof is there on the side of the plaintiff with regard to his title apart from considering the evidence leading to injunction, it is open to the Courts to go into the title incidentally.” Therefore, I am of the considered view that for the purpose of finding out whether the appellant has got right to lawful possession so as to maintain his possession, the question of title can certainly gone into which will be incidental. This is only for the purpose to find out a prima facie title and possession and nothing else. 31. Exhibit B-13 is a revision petition filed by the first respondent challenging the rytowary patta. The contents of which will throw some light into this matter. Under a Will dated 13. 1914 one Appaswamy Chettiar had bequeathed the property in favour of Rajamanickam Chettiar and others. They have sold the property under a registered sale deed dated 25. 1939 and 5. 1944 to one Durairaj Pillai. The said Durairaj Pillai was in possession and cultivation of 3 acres 42 cents in T.S. No.3073 (equivalent to 10 MAHS and 25 Kuli). The said Durairaj Pillai Sold this Property to Sankariammal under a registered sale deed dated 1. 1951. Sankaraiammal sold 1.71 acres to the respondent under a sale deed dated 28. 1975 and another 1.71 acres to one Senthil who is the brother of the respondent. The appellant’s father purchased from Sankariammal 46 cents in S.No. 3077/1. The property was vested with the Government under the provision of Act 26 of 48. 1951. Sankaraiammal sold 1.71 acres to the respondent under a sale deed dated 28. 1975 and another 1.71 acres to one Senthil who is the brother of the respondent. The appellant’s father purchased from Sankariammal 46 cents in S.No. 3077/1. The property was vested with the Government under the provision of Act 26 of 48. The reason being such vesting is that the properties were found to be Inam lands (TAMIL). Sankariammal could not file an application for ryotwari patta under Section 15 of the Act. Consequently, the land came to be classified in the settlement account as assessed dry waste. The appellant’s father, S.K. Kandasamy Nadar had applied for a ryotwari patta invoking the provision under G.O. Ms. 1300 dated 30.4.1971 for his land purchased under Sale deed dated 28. 1975 in T.S. No.3077/1 and also for the entire extent in T.S. No.3073. The appellant’s father was granted patta under Exhibit-A-19 dated 210. 1977. This is how the appellant’s father was granted ryotwari patta under G.O. Ms. No.1300. .32. Appellant’s father has been alienating the property and has retained some portions and on 25. 1995 has settled 42 cents in favour of the appellant. Based on this settlement, mutation of revenue records have been effected. As per the ryotwari patta the revenue records for both survey numbers stood in the name of the appellant’s father and he has been in possession and enjoyment of the property which is continued by the appellant. The suit was filed in the year 1999. Only thereafter, the 1st respondent has approached the Special Commissioner and the Commissioner for Land Administration for a revision to cancel the patta issued to the appellant’s father, the appellant’s father had appeared and has filed a reply under Exhibit B-8. He had stated that when the enquiry was conducted for issuing ryotwari patta under G.O.Ms. No.1300. the respondent and another brother Senthilvel had no objection for issuing patta in favour of elder brother and they have also obtained some other properties from their brother in lie of this property. He had also stated that how he has been enjoying the property by various alienations and encumbrances. The respondent was directed to file an appeal which was opposed by way of writ petition as evidence by Exhibit B-6. He had also stated that how he has been enjoying the property by various alienations and encumbrances. The respondent was directed to file an appeal which was opposed by way of writ petition as evidence by Exhibit B-6. However, it was not brought to the notice of this Court that what is the result of the revision petition or the result of any appeal, if preferred against the order passed under Exhibit A-19 dated 10. 1977. However, the appellant had obtained sub division and patta by order dated 6. 1999 under Exhibit A3 which was taken on appeal by the respondent and an order was passed by the Revenue Divisional Officer on 12. 2004 under Exhibit B-8. The parties were advised to establish their title in civil Court. The matter stands thus. 33. Therefore, on the date of filing of the suit, the ryotwari patta granted under Exhibit B-19 dated 10. 1977 stands unaltered and the parties were advised to establish their right in a civil Court. 34. The documents filed by the appellant would show that the appellant’s father and thereafter the appellant was in continuous possession and enjoyment of the property on the date of filing of the suit. Though the documents of title namely, the sale deeds dated 28. 1975 stood in the name of the respondent and his brother. A ryotwari patta under G.O. Ms. No. 1300 was granted to the appellant’s father as early as 1977. This has not been set aside or cancelled by the competent authority. Irrespective of the grant of patta, still, the civil Court can decide the title of the parties. However, not in a suit for injunction simplicitor. The parties are always at liberty to establish their title in the appropriate forum. .35. In the present case, the appellant has proved his prima facie title and effective possession. In Rame Gowda (D) by lrs Versus M Varadappa Naidu (D) by Lrs and Another (Supra) the Supreme Court has held: .“12. In the present case the Court has found the plaintiff as having failed in proving his title. Neverthless, he has been fount to be in settled possession of the property. Even the defendant failed in proving his title over the dispute land so as to substantiate his entitlement to evict the plaintiff. In the present case the Court has found the plaintiff as having failed in proving his title. Neverthless, he has been fount to be in settled possession of the property. Even the defendant failed in proving his title over the dispute land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession protecting the established possession and restraining the attempted interference therewith. The trial court and High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.” 36. This first appellate Court was not called upon to go into the question of title and establish the same on any of the parties. In B. Chandrasekaran and Another Versus State of Tamil Nadu and 3 Others (supra) this Court has held that the ryotwari patta granted under G.O.MS.No.1300 has become final unless it is interfered by the Commissioner of Land Administration. Therefore, the Civil Court cannot set aside ryotwari patta in a suit for bare injunction. 37. In my considered view that in a suit for injunction simplicitor the Court can look into the tile incidentally and the conclusive determination of the title to the property is not called for. The parties are always at liberty to establish their title/the first appellate Court is also not right in rejecting the ryotwari patta granted under G.O.Ms. No.1300 which has become final unless interfered by a competent authority. 38. For the reasons stated above, the substantial questions of law have been answered accordingly. 39. In the result, the appeal stands allowed and the decree and judgment of the first appellate Court is set aside. No costs.