JUDGMENT : PRAYER :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 05.09.2011 made in A.S.No.67 of 2011 on the file of Sub Court, Devakottai, confirming the judgment and decree dated 08.12.2010 made in O.S.No.38 of 2009 on the file of Principal District Munsif Court, Karaikudi. This appeal is filed against the order in A.S.No.67 of 2011 on the file of the Subordinate Court, Devakottai, confirming the judgment and decree in O.S.No.38 of 2009 on the file of the learned Principal District Munsif, Karaikudi. The appellant is the defendant in the original suit. The respondent is the plaintiff in the original suit. The respondent herein filed a suit for permanent injunction. 2.A brief substance of the plaint is as follows: The suit property is situated in Kazhanivasal village. The plaintiff is having electricity connection and is paying house tax. The plaintiff is in possession of the property from the year 1993, by constructing a small thatched hut and he is using the vacant portion for cultivating vegetables. Two years prior to the filing of the plaint, the plaintiff removed the hut and constructed a house therein and the plaintiff is residing in the suit property. The defendant is having no right or title. On 19.10.2008, the defendant threatened the plaintiff to dispossess him from the property. 3. A brief substance of the written statement filed by the defendant is as follows: (i) The plaintiff was not in possession of the suit property for the past 15 years. The defendant purchased the suit property from one Sangarapandiyan for valuable consideration. A natham patta in S.No.133/10 was issued in favour of the predecessor of the defendant. The defendant is in effective possession of the suit property for more than the statutory period. The defendant purchased some other house plots near the suit property and subsequently he sold them to a third person. Taking advantage of the fact that the defendant is residing 50 kms away from the property, during the month of April, 2008, the plaintiff trespassed into the suit property and constructed a hut. The defendant filed a complaint to the authorities. On 25.06.2009, the Revenue Divisional Officer sent a memorandum to the Tahsildar, Karaikudi to remove the encroachment in the suit property. After knowing this, the plaintiff has come forward with the suit. The defendant filed a complaint to the authorities. On 25.06.2009, the Revenue Divisional Officer sent a memorandum to the Tahsildar, Karaikudi to remove the encroachment in the suit property. After knowing this, the plaintiff has come forward with the suit. The plaintiff constructed the hut in the suit property in the year 2008 which is an illegal activity and the suit has to be dismissed. (ii) In the counter claim the defendant claimed that he is the absolute owner of the suit property and sought removal of the super structure built by the plaintiff by encroaching the suit property, as per the time limit fixed by this Court and to hand over the vacant possession of the suit property to the defendant, in default, he sought the Court below to pass a decree of recovery of possession and for cost. 4. In the reply to the counter claim filed by the defendant, it is stated that the averments in the written statement are false. It is wrong to state that an assignment patta was granted to the vendor of the defendant. The defendant is not entitled to declaration and recovery of possession. The counter claim is barred by limitation. 5. On the above pleadings, the trial Court framed the following issues: i) whether the plaintiff is entitled for permanent injunction as prayed for? ii) whether the defendant is entitled for relief of declaration and title over the suit property as prayed in the counter claim. iii) whether the defendant is entitled for mandatory injunction and recovery of possession in the suit property as claimed in the counter claim. iv) whether the counter claim is barred by limitation? v) what are the other reliefs the plaintiff and defendants are entitled for? Three witnesses were examined. Five documents were marked on the side of the plaintiff. Two witnesses were examined and two documents were marked on the side of the defendant. The trial Court decreed the suit in favour of the plaintiff and dismissed the counter claim filed by the defendant. 6. Against the judgment and decree, the defendant preferred an appeal in A.S.No.67 of 2011 on the file of the Subordinate Court, Devakottai, on the following grounds: The trial Court failed to consider the oral and documentary evidence in the proper perspective. The plaintiff was in unlawful possession. 6. Against the judgment and decree, the defendant preferred an appeal in A.S.No.67 of 2011 on the file of the Subordinate Court, Devakottai, on the following grounds: The trial Court failed to consider the oral and documentary evidence in the proper perspective. The plaintiff was in unlawful possession. Even the plaintiff admitted the same but the trial Court failed to consider the case of the defendant. The defendant purchased the suit property on 10.02.1995 and till the year 2008, the defendant was in enjoyment of the property. The plaintiff unlawfully trespassed into the property. When a counter claim was filed for declaration and for possession, a suit for bare injunction is not maintainable. 7. On the ground of appeal, the lower appellate Court framed the following issues: i) whether the plaintiff is entitled for the relief sought for? ii) whether the appeal is to be allowed? 8. The first appellate Court dismissed the appeal. Against the same, the defendant approached this Court by way of Second Appeal on the following grounds: (i) The Courts below ought to have dismissed the suit of the plaintiff, in the absence of the prayer for declaration of title. Both the Courts have failed to appreciate that the possession of the plaintiff is unlawful and illegal. (ii)The trial Court is wrong in rejecting the counter claim for non joiner of necessary parties. The trial Court failed to consider that the property was assigned in favour of the vendor of the defendant and not to the plaintiff and the Government is not a necessary party to decide the issue. (iii)The trial Court failed to appreciate that the documents filed by the plaintiff are not documents of title. There is no title or possession. The lower appellate Court has erred in holding that a separate appeal is necessary against the rejection of the counter claim and non consideration of the counter claim in the appeal is erroneous. 9.This Second Appeal was admitted on 01.03.2022 on the following substantial questions law: i) whether the suit for permanent injunction is maintainable in law when the title is in dispute and especially in the absence of prima facie title in favour of the plaintiff? ii)whether the suit for permanent injunction is maintainable in law against the true owner in the absence of the relief of declaration in the plaint? ii)whether the suit for permanent injunction is maintainable in law against the true owner in the absence of the relief of declaration in the plaint? The appellant has filed a petition to receive additional documents in M.P.No.1 of 2015 before this Court since filing of further documents will lead to further delay in the disposal of the case. This petition was dismissed by this Court without prejudice to the both parties. 10.On the side of the appellant, it is stated as follows: The suit was filed by the plaintiff for a prayer of injunction and it is the duty of the plaintiff to prove his case. The case of the plaintiff is that he was in occupation of the suit property for the past 15 years and he constructed a small thatched house and that in the suit property and in the year 2008, he demolished the hut and constructed a house, and that Electricity connection was also given and that he was paying the electricity charges and is paying property tax. The trial Court and the first appellate Court failed to consider that though the plaintiff is claiming possession for the past 15 years, he has not filed any documents to prove possession. The suit was filed in the year 2005 and only three documents ie., house tax receipts Ex.A1 and Ex.A2, and Electricity bill -Ex.A3, were filed to prove possession. All the three documents are of the year 2008. There is absolutely no documents to prove possession for a period of 15 years. 11. On the side of the appellant, it is stated that the plaintiff is claiming the property as Natham poromboke but he has failed to implead the Government as a party in the suit. This suit was decreed in favour of the plaintiff only on the ground of adverse possession. In the evidence of P.W.3, the Village Administrative Officer, it is stated that Natham survey was conducted from the year 1991 till 1994 and that a patta was issued in the name of Mohan in the year 1996 and subsequently the same was cancelled on 18.11.1997 and that the property belong to the Government. P.W.3, has deposed that the plaintiff has trespassed into the property but he failed to inform the authority regarding the trespass which shows that there is something fishy in the evidence of P.W.2. 12. P.W.3, has deposed that the plaintiff has trespassed into the property but he failed to inform the authority regarding the trespass which shows that there is something fishy in the evidence of P.W.2. 12. On the side of the appellant, it is further stated that the plaintiff has deposed that during Natham survey, he was residing in Thimmapatti Village, Thiruppuvanam which reveals that the plaintiff was not in possession of the property from the year 1991 to 1994. The suit was of the year 2009 and there is no possibility of the plaintiff to be in possession for a period of 15 years. 13.On the side of the appellant, it is stated that P.W.2 who is the employee of the panchayat union office has deposed that he has not perused the documents regarding the ownership at the time of issuing the house tax receipts and that there will be tax for vacant site also, and that even for a mud house, house tax will be levied. and that there was no resolution passed in the panchayat union. 14. Without considering the evidence of P.W.2, and without considering the fact that P.W.2 has issued house tax receipt without perusing the documents. The trial Court has decreed the suit in favour of the plaintiff, without considering the evidence of P.W.1 to P.W.3 in the proper perspective. 15. On the side of the respondent, it is stated that the plaintiff was in possession of the property for the past 15 years and he constructed a house in the year 2009. P.W.3 has admitted that no assessment was made prior to 2009 but P.W.3 has stated that the plaintiff was in possession for the past 15 years. The evidence of P.W.2 is clear that patta was given in the name of Mohan, then the same was cancelled and even now the property is a Natham poromboke that belonged to the Government. Possession of the plaintiff was admitted even by the defendant and that a mere denial is not in sufficient to file a suit for declaration. 16.On the side of the appellant, it is stated that the suit was filed by the plaintiff and that the plaintiff is claiming possession for a period of over 15 years, and he has to prove possession for a period of 15 years. 16.On the side of the appellant, it is stated that the suit was filed by the plaintiff and that the plaintiff is claiming possession for a period of over 15 years, and he has to prove possession for a period of 15 years. Except the oral evidence of P.W.1 to P.W.3, there was no documentary evidence on the side of the plaintiff to prove possession. Ex.A1 to A5 are documents of the year 2008 and these documents cannot be taken into account for deciding possession for a period of 15 years. 17. On the side of the appellant, it is stated that both the Courts below failed to consider the claim of the defendant, for declaration of title and for recovery of possession. The defendant filed a registered sale deed of the year 1995, which was marked as Ex.B1. The defendant purchased the property from one Sangarapandiyan who obtained an assignment patta in the year 1976. The trial Court dismissed the case of the defendant only on the ground that assignment patta was not marked by the defendant and has taken an adverse inference against the defendant. The assignment order could not be filed during the time of trial since the order was available with the vendor of the defendant and now the defendant was ready to mark the document and has filed a petition to receive additional documents. P.W.1 himself has admitted that no patta was issued in his name and he has not filed any document to prove his possession prior to 2008. 18.On the side of the respondent, it is stated that in Ex.B1, how the vendor of the defendant obtained ownership, was not stated in Ex.B1 and the genuineness of the Ex.B1 was not proved before the Court below and the possession of the plaintiff was admitted and hence the defendant failed to prove the title and the right for recovery of possession. The trial Court has rightly come to the conclusion that there is no recital in Ex.B1 as to how the vendor got title over the property and that the defendant failed to produce prior title deeds or patta. 19. It is seen that assignment patta was not filed before the trial Court and the claim of the defendant is rejected by the trial Court on the ground that Government was not impleaded as a party. 19. It is seen that assignment patta was not filed before the trial Court and the claim of the defendant is rejected by the trial Court on the ground that Government was not impleaded as a party. The entire claim of the defendant is based on Ex.B1. The case is not against the Government. The Government has not questioned the title of the defendant. Hence there is no necessity for the defendant to implead the Government as one of the party. 20. The trial Court and the first appellate Court has decreed the suit in favour of the plaintiff on the basis of a revenue record and failed to consider the title deed produced by the defendant. Revenue records are not documents of title. The prayer for declaration of title sought for by the defendants is only against the plaintiff and not against the Government. The document of title filed on the side of the defendant is a better document than the documents marked on the side of the plaintiff and hence, it is decided that the defendant is entitled for declaration of title against the plaintiff. 21.On the side of the appellant, it is stated that when the defendant is claiming title over the property and when the defendant has filed a registered title deed and has filed a counter claim, it is the duty of the plaintiff to amend the plaint suitably. A suit for bare injunction is not maintainable and that it is duty of the plaintiff to amend the suit for declaration of title. A judgment of the Hon'ble Supreme Court reported in 2021 SCC Online SC 674 in the case of T.V.Ramakrishna Reddy Vs M.Mallappa and another, is cited. Wherein it is held as follows: "10.It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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." 22. When the defendant is claiming title, the plaintiff has to prove his possession adverse to the right of the plaintiff. When the defendant is claiming title, the plaintiff has to prove his possession adverse to the right of the plaintiff. The plaintiff has mentioned the plot number as 82 but has failed to prove that Plot No.82 belonged to the Government. When the defendant has taken a specific plea and filed a counter claim, claiming title through a registered sale deed, a suit for bare injunction is not maintainable against a person claiming ownership. 23. Issue No.2: The first appellate Court has declined to decide the counter claim for declaration and for recovery of possession on the ground that separate appeals were not filed against the dismissal of the counter claim. On the side of the appellant, it is stated that Court fee was paid and there is no need to file two separate appeals against a single judgment and that for the prayer of declaration of title and recovery of possession, separate Court fees was paid in the appeal and hence the decision of the first Appellate Court is erroneous. On the side of the respondent it is stated that the appellant failed to file two appeals i.e., one against the judgment and decree of the lower Court in favour of the plaintiff and the other against the dismissal of the counter claim filed by him and that the first appellate Court is right in dismissing the claim of the defendant. 24. Records perused. In the appeal suit, A.S.No.67 of 2011, the defendant has paid separate Court fees for quashing the dismissal of the counter claim. In the grounds of appeal, it is specifically stated as follows: "The appellant do hereby value the appeal as in the lower Court and paying the same Court fees of both paid by the plaintiff u/s.27(c) of TNCF & V Act Rs.75.50 and by the defendant u/s.25(a) of TNCF & V Act Rs.2250.50 read with Section 52 of TNCF & V Act and has paid. The total sum of Rs.2326.00 as Court fee for this appeal." 25. It is clear that the appellant has paid separate Court fees for the claim against the decree of the suit infavour of the plaintiff and against the dismissal of the counter claim. In the above circumstances, the dismissal of the appeal, solely on the ground that no separate appeal was filed, without considering the dismissal of the counter claim raised, is erroneous. 26. In the above circumstances, the dismissal of the appeal, solely on the ground that no separate appeal was filed, without considering the dismissal of the counter claim raised, is erroneous. 26. When, the defendant is claiming title, a suit for bare injunction is not maintainable. When additional Court fee was paid for a prayer against the dismissal of the counter claim, there is no necessity to file separate appeal against a dismissal of a counter claim. 27. Hence, this Second Appeal is allowed by setting aside the judgment and decree of the learned Principal District Munsif Court, Karaikudi dated 08.12.2010 made in O.S.No.38 of 2009 and judgment and decree of the learned Subordinate Judge, Devakottai, made in A.S.No.67 of 2011 dated 05.09.2011. The counter claim of the defendant is allowed. The appellant is entitled for declaration of title and for recovery of possession. The respondent is directed to remove the superstructure, if any, and to hand over vacant possession of the property within a period of four months from the date of this order. No costs.