JUDGMENT : This appeal has been filed against the fair and decreetal order dated 19.11.2015 passed in I.A. No. 144 of 2015 in A.S. No. 73 of 2015 on the file of the Sub Court, Sankarankovil. 2. The appellants are petitioners in I.A. No. 144 of 2015 in A.S. No. 73 of 2015 on the file of Sub Court, Sankarankovil. They are the plaintiffs in O.S. No. 289 of 2013 on the file of Principal District Munsif Court, Sankarankovil. The respondents are defendants in the suit. Respondents in I.A. No. 144 of 2015, first appeal and CMA. 3. The facts of the case are as follows: (i) The appellants filed O.S. No. 289 of 2013 on the file of Principal District Munsif, Sankarankovil for a declaration that suit properties are their absolute properties and for permanent injunction restraining the respondents from interfering with their possession and enjoyment of the same. They also prayed for a declaration that family arrangement dated 25.4.2011 executed by first respondent in favour of the second respondent, is void. (ii) The respondents contested the said suit alleging that the suit properties are self earned properties of father of the second appellant, the first respondent and two other brothers, namely, Veluchamy and Ayyadurai. After death of their father and mother, the suit properties which are joint family properties are enjoyed by the second appellant, first respondent and other two brothers. They were dealing with property by mortgaging the properties and borrowed monies for family expenses. From and out of the joint family income of the properties, originally, purchased by their father only, second appellant purchased other properties. (iii) The Principal District Munsif, Sankarankovil framed necessary issues based on the pleadings and conducted the trial. After full fledged trial, the Principal District Munsif dismissed the suit. Against the said Judgment and Decree dated 19.8.2015, the appellants have filed A.S. No. 73 of 2015. They filed I.A. No. 144 of 2015 in A.S. No. 73 of 2015 for injunction pending appeal. They alleged that they are in possession and enjoyment of suit properties and respondents taking advantage of dismissal of suit are trying to interfere with their possession. (iv) The respondents filed their counter affidavit and contended that the Principal District Munsif, Sankarankovil has dismissed the suit filed by the appellant by giving cogent and valid reasons holding that the suit propeties are joint family properties. (iv) The respondents filed their counter affidavit and contended that the Principal District Munsif, Sankarankovil has dismissed the suit filed by the appellant by giving cogent and valid reasons holding that the suit propeties are joint family properties. All the properties are enjoyed jointly by second appellant, first respondent and other two brothers. (v) The learned First Appellate judge dismissed the interlocutory application filed by the appellants. Against the said order of dismissal dated 19.11.2015, the present Civil Miscellaneous Appeal has been filed. 4. The learned counsel for the appellants contended that the learned First Appellate Judge failed to see that the appellants have prima facie case and balance of convenience is also in their favour for grant of injunction, pending appeal; that an order of injunction was granted pending suit in favour of the appellants; that the respondents have failed to prove that they are all co-owners along with the appellants; that suit properties are self acquired properties of appellants. The First Appellate Judge had considered the first appeal itself on merits, but dismissed the IA for injunction. The learned Judge has failed to consider the fact that the appellants are in possession of the suit properties and respondents had not denied the said fact and thereby, erred in dismissing the application for injunction based on the findings of the trial Court. 5. To support his contention, the learned counsel for the appellants relied on the following Judgments: (i) AIR (34) 1947 Privy Council 192 [Brijlal Vs. Govindram]. (ii) 2004 (3) L.W. 49 [D.S. Lakshmaiah & Anr. Vs. L. Balasubramanyam & Anr.] (iii) AIR 1969 (SC) 1076 [Mudigowda Gowdappa Sankh and Others Vs. Ramchandra Revgowda Sankh and Another] These three judgments deal with deciding the issue of joint family properties. These judgments are not relevant to decide the issue whether the appellants are entitled to injunction pending appeal or not. 6. The learned counsel for the appellants also relied on the judgment reported in 2008 (4) SCC 791 [Tanusree Basu & Others Vs. Ishani Prasad Basu & Others]. Paragraphs 13, 14, 23 and 24 of the Judgment are as follows: "13. There cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all. Ishani Prasad Basu & Others]. Paragraphs 13, 14, 23 and 24 of the Judgment are as follows: "13. There cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all. This, however, in a case of this nature would not mean that where three flats have been allotted jointly to the parties, each one of them cannot be in occupation of one co-owner separately. 14. We have noticed hereinbefore that the plaintiffs appellants themselves in no uncertain terms admitted that by reason of mutual adjustment the parties had been in separate possession of three flats, viz., Flat Nos. 201, 202 and 301. If they were in possession of the separate flats, plaintiffs as co-owners could not otherwise have made any attempt to dispossess the first respondent by putting a padlock. The padlock, according to the first respondent, as noticed hereinbefore, was put by the plaintiffs appellants immediately after the appeal preferred by them in the High Court was dismissed. 23. It is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. If a party takes recourse to any contrivance to dispossess another, during pendency of the suit either in violation of the order of injunction or otherwise, the court indisputably will have jurisdiction to restore the parties back to the same position. 24. In Israi v. Samset Rahman Mookerjee, J. held that a co-owner being in exclusive possession of a joint property would be entitled to injunction. If a person is entitled to a prohibitory injunction, a fortiori he shall also be entitled to a mandatory injunction. [See also Spandan Diagnostic & Research Centre (P) Ltd. V. Ritendra Nath Ghosh]" 7. Per contra, the learned counsel for respondents contended that respondents have proved that all the suit properties are joint family properties and that they are jointly enjoying the same. They have jointly dealt with the properties by borrowing monies on the security of suit properties for family expenses. The Principal District Munsif, Sankarankovil dismissed the suir after full fledged trial considering the pleadings, evidence both oral and documentary and also the arguments. The learned counsel for the respondents also submitted that injunction cannot be granted against the co-owner. 8. They have jointly dealt with the properties by borrowing monies on the security of suit properties for family expenses. The Principal District Munsif, Sankarankovil dismissed the suir after full fledged trial considering the pleadings, evidence both oral and documentary and also the arguments. The learned counsel for the respondents also submitted that injunction cannot be granted against the co-owner. 8. To support his contention, the learned counsel for the respondents relied on the Judgment of the Hon'ble Apex Court reported in 2006 (5) SCC 282 [Seema Arshad Zaheer & Others Vs. Municipal Corporation of Greater Mumbai & Others] wherein in paragraph 32 it is held as follows: "Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is 'no material', or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on 'no material' (similar to 'no evidence'), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was 'no material' to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court." 9. I have considered the rival submissions of both sides and also perused the materials on record. 10. Point for consideration: Whether the appellants are entitled for injunction restrating the respondents from interfering with their possession and enjoyment of the suit properties pending first appeal? 11. The appellants filed suit with a specific averment that the properties are self acquired properties. Based on the said averments, they prayed for declaration and injunction. The appellants have stated in the affidavit in I.A. No. 144 of 2015 that an injunction was granted in their favour pending suit. They also stated that they are in possession of suit properties. 12. The respondents in the counter affidavit have not denied these averments. The respondents have mainly contended that the trial Court has held that suit properties are joint family properties. They also stated that they are in possession of suit properties. 12. The respondents in the counter affidavit have not denied these averments. The respondents have mainly contended that the trial Court has held that suit properties are joint family properties. The First Appellate Court failed to consider the averments of the appellants that they are in possession of the suit properties and there was injunction in their favour pending suit. The learned Judge has not given any finding in this aspect. 13. On the other hand, the First Appellate Judge has considered the Judgment of the trial Court and dismissed the application for injuntion filed by the appellants. The learned First Appellate Judge has not properly exercised his power conferred on him in a proper perspective. 14. In the proceedings for injunction, the criteria for granting injunction or for rejecting the same is whether the person seeking injunction is in possession of the property. The title of the property is not an issue. In the present case, admittedly, the second appellant was appointed as a Power of Attorney to deal with the properties. The respondents have also filed suit for partition. Whether the appellants are in possession of the properties as absolute owners or holding the joint family properties has to be considered and decided in the First Appeal. Further, first respondent has admitted that the second appellant is the eldest member of the family and he has been permitted to deal with the property as Kartha of joint family. Considering these facts and averments of appellants that they are in possession, the appellants have made out prima facie case with regard to their possession of the suit properties. Further, the balance of convenience is also in favour of the appellants, as, if the respondents interfere with the possession of the appellants and ultimately if the appellants succeed in the appeal, they will be put to irreparable loss and hardship. 15. Considering the fact that the appellants have stated in their affidavit that they are in possession of the suit properties and that there was injunction in their favour pending suit, the order of the First Appellate Judge dated 19.11.2015 passed in I.A. No. 144 of 2015 in A.S. No. 73 of 2015 is set aside. I.A. No. 144 of 2015 is allowed. I.A. No. 144 of 2015 is allowed. There will be an order of injunction pending First Appeal in A.S. No. 73 of 2015 restraining the respondents from interfering with the possession and enjoyment of the appellants in the suit properties. 16. In the result, the Civil Miscellaneous Appeal is allowed. The First Appellate Judge is directed to hear the First Appeal and pass orders on merits in accordance with law as expeditiously as possible, in any event, not later than six months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.