JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 17.07.2003 passed in A.S.No.23 of 2003 on the file of the District Court, Nilgiris at Udagamandalam confirming the judgment and decree dated 07.02.2003 passed in O.S.No.34 of 1997 on the file of the District Munsif Court, Kotagiri.) 1. This second appeal is directed as against the judgment and decree dated 17.07.2003 passed in A.S.No.23 of 2003 on the file of the District Court, Nilgiris at Udagamandalam, confirming the judgment and decree dated 07.02.2003 passed in O.S.No.34 of 1997 on the file of the District Munsif Court, Kotagiri. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3. The case of the plaintiff in brief is as follows :- 3.1. The suit is filed for permanent injunction. The suit property belongs to Kinna Bellie, Pela Ajjan, Keme Iyyan, Kutta Dhonan and Kuttu Hiriyan and in the partition effected among themselves each of them entitled to 0.09 acres. The said Keme Iyyan had two sons viz., Sevanan and Morchan. After the demise of the said Keme Iyyan, his share of 0.09 acres was partitioned between his two sons Sevanan and Morchan and each of them entitled to get 0.04½ acres. The said Sevanan purchased an extent of 0.09 acres in the same survey number from Pela Ajjan and hence he became entitle for 0.13½ acres. The said Sevanan died leaving behind three sons viz., Bella Gowder, Bellie Gowder and Nanja Gowder and they were divided the property equally and each of them got 4½ cents. Nanja Gowder had two sons viz., K.N.Ajjan & K.N.Joghee and by mutual arrangement, the entire 4½ cents came to K.N.Joghee and he was in possession and after his death, the plaintiff is in possession and enjoyment of the property as his sole representative. While being so, the defendants, who are the legal heirs of the said Bella Gowder and Belli Gowder, are attempted to interfere with her possession and enjoyment and hence, the plaintiff filed this present suit. 4. Resisting the case of the plaintiff, the defendants 1 & 2 and 5 to 9 contended that the suit property has not been sub-divided so far and unless the suit property is divided by mets and bounds, the co-owners are entitled for their respective shares. 4. Resisting the case of the plaintiff, the defendants 1 & 2 and 5 to 9 contended that the suit property has not been sub-divided so far and unless the suit property is divided by mets and bounds, the co-owners are entitled for their respective shares. The possession of the plaintiff is denied and she suppressed the fact that Bella and Bellie names were also found in the chitta extract. The plaintiff is not only entitled for the share of the late K.N.Joghee but the legal heirs of the late Bella Gowder and Belli Gowder are also entitled for their share. Therefore, the plaintiff is not entitled for any relief as sought for by her and the suit is liable to be dismissed. 5. In support of the plaintiff’s case, she herself examined as P.W.1 and two documents were marked as Ex.A.1 and Ex.A.2. On behalf of the defendants, the first defendant was examined as D.W.1 and Ex.B.1 to Ex.B.3 were marked. The Advocate Commissioner’s report and Sketch were marked as Ex.C.1 and Ex.C.2. 6. On considering the oral and documentary evidence adduced by the parties and the submission made by the learned counsel on either side, the Courts below dismissed the suit filed by the plaintiff for injunction. Challenging the same, the plaintiff preferred an appeal suit and the same was also dismissed by confirming the judgment and decree of the trial Court. Aggrieved over the same, the plaintiff has come up with the present second appeal. 7. At the time of admission, the following substantial questions of law were framed by this Court:- 1. Whether the Courts below are justified in not considering the recital in Ex.B.3 placed before it in a proper perspective? 2. Whether the Courts below have overlooked the admission of D.W.1 in his evidence that he has been in separate possession and enjoyment of 2½ cents under Ex.B.3? 8. The learned counsel appearing for the appellant would submit that out of five shares, the legal heirs of Bella Gowder, Bellie Gowder are only questioned the partition. He further submitted that D.W.1 had admitted that the property of Sevanan i.e., 13½ cents was divided by his three sons viz., Bella Gowder, Bellie Gowder and Nanja Gowder. Nanja Gowder property was came to his two sons viz., K.N.Ajjan and K.N.Johgee. He further submitted that D.W.1 had admitted that the property of Sevanan i.e., 13½ cents was divided by his three sons viz., Bella Gowder, Bellie Gowder and Nanja Gowder. Nanja Gowder property was came to his two sons viz., K.N.Ajjan and K.N.Johgee. The first defendant (D.W.1) purchased the property of 2½ cents with specific boundaries under Ex.D.3, the sale deed executed by K.B.Raman, which shows the share of the plaintiff. 8.1. The learned counsel appearing for the appellant further pointed out the cross examination of D.W.1 as follows:- “TAMIL” Therefore as per Section 92 of Indian Evidence Act, the party cannot plead against the written document executed by him. He further submitted that the first defendant categorically admitted that as per Ex.B.3, sale deed executed by K.B.Raman in favour of him, after demise of his father viz., Belli Gowder, the schedule property in Ex.B.3 was inherited by his legal heir ie., K.B.Raman and that the property was derived in his favour and thereafter he is in possession and enjoyment of his share of the property. The said property was purchased by the first defendant from his brother i.e., the ninth defendant there in. Therefore, the admitted fact need not be proved again and again, as per Section 58 of the Indian Evidence Act. The entirety of Ex.B.3 was not at all considered by the Courts below. 8.2. He further submitted that these are all the documents to prove that the property was already partitioned by the legal heirs of the Bella Gowder and all are having their separate share and possession of the said property. Therefore, the plaintiff is in possession of her share and she is entitled for the relief of permanent injunction. He further submitted that there was no evidence to show that the plaintiff stored material to built construction and there was no evidence to put up construction. Unfortunately, both the Courts below failed to consider the above facts that D.W.1 had categorically admitted the shared possession of the plaintiff. To support of his arguments the learned counsel appearing for the appellant/plaintiff relied upon the following judgments: 1. 2017 (5) CTC 369 - B.R.Srinivasa Rao Vs. Dr.B.R.Shankar, 2. 2015 (5) CTC 500 - G.M.Jagannathan and anr Vs. H.Indira and anr., 9. To support of his arguments the learned counsel appearing for the appellant/plaintiff relied upon the following judgments: 1. 2017 (5) CTC 369 - B.R.Srinivasa Rao Vs. Dr.B.R.Shankar, 2. 2015 (5) CTC 500 - G.M.Jagannathan and anr Vs. H.Indira and anr., 9. Per contra, the learned counsel appearing for the respondents/ defendants submitted that the suit schedule property has not been subdivided and they are the co-owners of the property. Therefore, the co-owners are also entitled for their respective shares in the suit schedule property. Without valid partition, the plaintiff cannot claim absolute ownership and exclusive possession of the suit schedule property. Further he submitted that the plaintiff is not in possession of the suit schedule property. The revenue documents produced by the plaintiff such as Chitta and Krist receipt would not help the case of the plaintiff, as such the plaintiff ought to have file a partition suit instead of filing the suit for permanent injunction. 10. Heard Mr. R. Subramanian, learned counsel appearing for the appellant and Ms.P.Priyanka, learned counsel appearing for the fifth respondent. 11. This Court considered the rival submission made by the learned counsel on either side. The only point for consideration is that whether the recital in Ex.B.3 has to be considered with regard to the partition between the legal heirs of Bella Gowder. 12. Originally the land ad-measuring 0.46 acres comprised in S.No. 694/11 belongs to one Kinna Bellie, Pela Ajjan, Kema Iyyan, Kutta Dhonan and Kuttu Hiriyan. The partition was effected among themselves and each one of them entitled 0.09 acre. The said Kema Iyyan had two sons viz., Sevanan and Morchan. They partitioned the said property and each of them got 0.04½ acres. The said Sevanan had purchased the share of Pela Ajjan, ie., the extent of 0.09 acres and hence he become absolute owner of 0.13½ acres. He died leaving behind three sons viz., Bella Gowder, Bellie Gowder and Nanja Gowder. After the demise of the said Sevanan, his three sons entitled for 0.04½ acres each. The said Nanja Gowder had two sons viz., K.N.Ajjan and K.N.Joghee and they have exchanged their property by adjusting in another property and as such K.N.Joghee become the absolute owner of the entire property to an extend of 0.04½ acres, which is the suit schedule property. The said Nanja Gowder had two sons viz., K.N.Ajjan and K.N.Joghee and they have exchanged their property by adjusting in another property and as such K.N.Joghee become the absolute owner of the entire property to an extend of 0.04½ acres, which is the suit schedule property. After the demise of the said K.N.Joghee, his wife ie., the plaintiff herein has become absolute owner and in possession and enjoyment of the property. Thereafter, she also paid the revenue taxes in respect of the suit schedule property in her name. While being so, the defendants, who are the legal heirs of the above said Bella Gowder have tried to trespass into her property. Hence, she filed the suit for injunction. 13. The specific case of the defendants are that the suit property has not been sub divided so far and the same is the co-owners’ property and the co-owners are entitled for their respective shares duly partitioned by means and bounds. In the absence of sub division and valid partition, the plaintiff cannot claim absolute ownership and exclusive possession of the suit schedule property. 14. The trial Court framed the issues as follows :- “Whether the plaintiff entitled for the relief of permanent injunction as against the defendants and what is the other relief.” The trial Court appointed an Advocate Commissioner to note down the physical features, in respect of the suit schedule property and his report and rough plan were marked as Ex.C.1 and Ex.C.2. The report said that the suit schedule property is not an extent of 4½ cents and it is only 3.99 cents. The trial Court concluded that the plaintiff failed to prove the partition by giving any documentary evidence, except her oral evidence. In fact, the plaintiff admitted that in Ex.A.1, the chitta consists the first and ninth defendants’ fathers name. Therefore, the chitta consists all the legal heirs’ name and as such no partition was happened and concluded that injunction cannot be granted against the co-owners. The first appellate Court has also endorsed the judgment and decree of the trial Court and dismissed the appeal. 15. It is well settled law that the Advocate Commissioner cannot be appointed in the suit for injunction to find out that who is in possession of the suit schedule property. The first appellate Court has also endorsed the judgment and decree of the trial Court and dismissed the appeal. 15. It is well settled law that the Advocate Commissioner cannot be appointed in the suit for injunction to find out that who is in possession of the suit schedule property. In the case on hand, though the Advocate Commissioner was appointed to note down the physical features of the suit property, he found that the plaintiff is in possession and enjoyment of the property. The extend of the property is not 4½ cents, whereas it is measured as 3.99 cents. Further it is an admitted fact that in the total extend of 0.46 acres, there are five persons and each one of them entitled for 9 cents. The plaintiff’s husband and his brother are the legal heirs of their father viz., Nanja Gowder. After his demise, they entitled for 4½ cents and after adjustment between them, the plaintiff’s husband alone entitled for the entire share. After demise of her husband, the plaintiff alone is in possession and enjoyment of the share. It is also evident from the report filed by the Advocate Commissioner. 16. Ex.B.3, sale deed dated 31.01.1997 executed in favour of the first defendant by his brother i.e., ninth defendant, K.B.Raman, in which there is specific recital that the property derived on the partition and the ninth defendant become the absolute owner. Further the schedule of the property categorically mentioned that the boundaries of eastern side is shown as the plaintiff’s house and on western side is shown as 6th defendant’s property and northern side shown as 9th defendant’s property and southern side is shown as the remaining portion of the first defendant. Therefore, the sale deed shows that all the legal heirs partitioned the property and they are in possession and enjoyment of their respective shares. Ex.B.3 is also a registered document. 17. The learned counsel appearing for the appellant/plaintiff rightly pointed out that under Section 92 of the Indian Evidence Act, there cannot be contra oral evidence as against the recital in the registered document. In this regard, the learned counsel relied upon the judgment reported in 2017 (5) CTC 369 in the case of B.R.Srinivasa Rao Vs. Dr.B.R.Shankar, which reads as follows :- “23.It is a well settled principle that the pleadings and evidence must go hand and hand. In this regard, the learned counsel relied upon the judgment reported in 2017 (5) CTC 369 in the case of B.R.Srinivasa Rao Vs. Dr.B.R.Shankar, which reads as follows :- “23.It is a well settled principle that the pleadings and evidence must go hand and hand. The evidence only includes the oral evidence, but also the documentary evidence produced at court. It is also a well established principle that under Section 92 of the Indian Evidence Act, a party cannot plead against a written document executed by him.....” Therefore, the defendants cannot plead against Ex.B.3, which is the registered sale deed between the first and ninth defendants. Ex.B.3 has been marked by the first defendant and the recital found in the Ex.B.3 also categorically admitted by the first defendant. The relevant portion of the evidence of D.W.1 is as follows :- “TAMIL” Accordingly, he categorically admitted that the ninth defendant sold out the property to him only after partition. Therefore, the first defendant categorically admitted that partition has already been effected and after the partition, he purchased the property from the ninth defendant herein. 18. In this regard, the learned counsel appearing for the appellant relied upon the judgment report in 2015 (5) CTC 500 in the case of G.M. Jagannathan and anr Vs. H.Indira and anr, as follows:- “Evidence Act, 1872 (1 of 1872), Section 58 - Admitted facts need not be proved - No oral evidence is required to prove admitted facts - Execution of Agreement of sale is admitted and receipt of advance is also admitted. Facts :- Suit was filed for recover of advance paid pursuant to Agreement to sell. Property was sold to thrid parties. Hence suit was filed to recover advance with interest. Held :- On perusal of the evidence of DW1, he has specifically admitted the execution of Ex.A.1 as well as the receipt of Rs.30,33,000 as stated in the aforementioned paragraphs. It is the specific case of the Appellants/Defendant that they did not see the respondents/plaintiffs at the time of execution of Ex.A.1 and in fact one Jeevaraj and Prasanth Chand alone had negotiated with them and they had only paid Rs.30,33,000/- and since the first defendant (DW1) has specifically admitted the receipt of Rs.30,33,000, their other contention has become pale into insignificance.” 19. In the case on hand, the first defendant categorically admitted that the property which was purchased by him only after the partition between himself and his brother i.e., the ninth defendant. The boundaries shown in the schedule of the property in Ex.B.3, also clear the fact that the partition was already over between the legal heirs. Therefore, this Court is of the considered opinion that the Courts below are not right in holding that the partition was not happened and failed to consider the recital of Ex.B.3. The Courts below also failed to consider the categorical admission of the evidence of D.W.1 that he is in separate possession and enjoyment of 2½ cents by virtue of sale deed dated 31.01.1997 purchased from the ninth defendant, which is marked as Ex.B.3. Therefore, the reasons arrayed by the Courts below are liable to be interfered with. The substantial question of law 1 & 2 are answered in favour of the appellant and the findings of the Courts below are set aside. 20. In fine, this Second Appeal stands allowed and the judgment and decree dated 17.07.2003 passed in A.S.No.23 of 2003 on the file of the District Court, Nilgiris at Udagamandalam, confirming the judgment and decree dated 07.02.2003 passed in O.S.No.34 of 1997 on the file of the District Munsif Court, Kotagiri, are hereby set aside. Consequently, connected miscellaneous petition is closed. No costs.