Raman Nayar, J.:— The question is whether the plaintiffs have succeeded in proving that they were in possession of the properties in suit at the time they brought the suit. The first court found that they had not and dismissed their suit for an injunction restraining the defendants from entering on the properties and dispossessing them. The lower appellate court found the contrary and has decreed the suit. Hence this appeal by the 3rd defendant who alone of the seven defendants contested the suit.

2. It is the admitted case that the properties were in the possession of Kesava Kurup, the husband of the 1st plaintiff and the father of plaintiffs 2 to 6 at the time of his death in 1122 M.E (1946–1947 A.D) Kesava Kurup had got the properties under Ext. A dated 4-7-1116 (18-2-1941), a Nischaya Udampadi entered into between the members of his joint (Marumakkathayam) family. Under this deed, properties in suit were allotted to Kesava Kurup and his brother, and after the death of his brother, Kesava Kurup was in sole possession and enjoyment. Ext. A, apart from calling itself a Nischaya Udampadi and not a Bhagapatram expressly states that the allotment of properties made therein between the five branches of the family was for purposes of maintenance and goes on to say that the only right conferred on the several branches was the right to enjoy the properties and that none shall have any right to encumber them or alienate them or even to cut own any trees excepting for certain limited purposes and then only with the consent of the two seniormost members of the family.

3. The document also shows that the family itself got the properties only as a maintenance arrangement under an Udampadi of 1096 (1920–1921) as a branch of a bigger family. And there is the further recital that the arrangement under the document is to continue in force until a fresh arrangement is made. In the face of all this it is abundantly clear that Ext. A was only a maintenance arrangement and not a partition and the circumstance that the allocation thereunder was made on a per capita basis—a logical basis for a maintenance arrangement—that provision was made for one branch getting the properties of another on the extinction of the latter (the latter being composed only of males and the branch to succeed being the nearest in relation to them) for periodical payments by one branch to another for equalisation of income and for compensation for improvements effected by particular persons, can, by no means spell out a partition. Therefore, with the death of Kesava Kurup, the sole surviving member of his branch, the properties should have reverted to the family and should have been taken possession of by the karnavan of the family on behalf of the family. It was indeed on the allegation that, after Kesava Kurup's death, the 1st defendant the karnavan of the family, and the remaining defendants, the heads of its various branches, were threatening to take forcible possession of the property from the hands of the plaintiffs who had got into possession on Kesava Kurup's death that the suit was brought; and there can be little doubt that Kesava Kurup was undivided from his family, that title to the properties remained with the family, and that the family was legally entitled to possession of the properties on Kesava Kurup's death.

4. The 1st defendant, the Karnavan of the family, is the father of the 1st plaintiff, and this suit was in the first instance dismissed by the trial court on the finding that the plaintiffs had no title to the property, that such possession as they had could only have been by permission of the 1st defendant, and that they were therefore not entitled to maintain the suit for an injunction against the true owners of the property, namely, the family of Kesava Kurup. This was affirmed in appeal. But on second appeal this court held that the courts below had erred in thinking that a person in peaceful possession of property albeit without title, could not maintain a suit for injunction against the true owner. In that view the suit was remanded to the first court for fresh decision after determining whether the plaintiffs were in possession on the date of the suit. What happened after the remand we have already seen.

5. I am of the view that the first court was right in holding that the plaintiffs had not succeeded in proving that they were in possession. Five witnesses were examined on the side of the plaintiffs. The first was the 1st plaintiff herself and her evidence is to the effect that, after her husband's death, she was in possession of the properties taking their yield and effecting improvements. Her father, the 1st defendant, was the second witness and he supported her. P.Ws 3 to 5 claimed to know the suit properties and asserted that, after Kesava Kurup's death, the yield from the properties were being taken by the 1st plaintiff. The first court was not prepared to accept this evidence, and, as I have already said, I am inclined to agree with it.

6. P.Ws 1 and 2 are obviously interested witnesses on whose evidence much reliance cannot be placed. So far as P.Ws 3, 4 and 5 are concerned, the first court has shown that their claim to know the properties is not quite well-founded. That apart, their evidence that the 1st plaintiff has been taking the yield from the properties after the death of her husband is not of great assistance in the circumstances of the case to show that the plaintiffs were in possession. The 1st defendant was an old man when Kesava Kurup died, and his evidence, as also the evidence of the 1st plaintiff, shows that he and the 1st plaintiff are living in adjoining houses and that the 1st plaintiff is looking after him. On the death of Kesava Kurup, the 1st defendant was the person legally entitled to be in possession, and, if his daughter, under whose care and protection he was virtually living, was taking the yield from the properties, even planting trees on them—whether she did these acts personally o: through others who might as well have been the 1st defendant's agents is not clear from the evidence of the witnesses—that is by no means inconsistent with her acting for and on behalf of the 1st defendant and hardly suffices to show that she was in possession in her own right.

7. In a case like this, oral evidence is, generally speaking, not very dependable and one looks for other evidence regarding acts of possession. One of the mos important factors to be considered is the payment of the taxes due on the property. Admittedly the taxes have actually been paid, ever since Kesava Kurup's death, by the 1st defendant, and the 1st plaintiff's evidence that he only acted as a messenger for her is hardly acceptable. If that evidence were true, the tax receipts should show that the payments were on behalf of the 1st plaintiff. But the 1st plaintiff who claimed to be in possession of the tax receipts did not put them into court, and the inference is legitimate that, had they been put into court, they would have shown that the 1st defendant had been making the payments in his own right. This is very significant and is, to my mind, by itself sufficient to show that the 1st defendant, and not the 1st plaintiff, was in possession of the properties after Kesava Kurup's death and that any acts of possession, if there were any, done the 1st plaintiff in respect of the properties could only have been on behalf of her father, the 1st defendant.

8. It is said that it was only natural that, on the death of Kesava Rurup, his wife and children should have got into possession of the properties. That might be natural in the case of Makkathayee families; in recent times probably also of Marumakkathayee families where the wife and children live with the husband under his care and protection. In this case there is, however, no evidence to show that the plaintiffs and Kesava Kurup were living together and it seems to me as natural that the 1st defendant, who was the karnavan of Kesava Kurup's undivided family, should have got into possession of the properties allotted to Kesava Kurup for his maintenance as that Kesava Kurup's wife and children should have got into possession of them.

9. When instituting the suit, the plaintiffs had applied for a temporary injunction and an interim injunction was granted on 1-12-1953. To this application the 3rd defendant, the only contesting defendant, filed a counter-affidavit on 14-12-1953, and he filed a written statement in the suit on 8-1-1954. In both the counter-affidavit and in the written statement he repeatedly averred that, on Kesava Kurup's death, the property reverted to Kesava Kurup's family and that the first defendant got into possession as karanavan of the family. Further, that the plaintiffs were not in possession and that their case that they were was false. However, to these averments he added that, in respect of the properties, the plaintiffs had only the status of trespassers, and this, it is said, amounts to a clinching admission that the plaintiffs were in possession after Kesava Kurup's death. Read along with the other averments to which I have referred, clearly denying that the plaintiffs were in possession and asserting that the 1st defendant was in possession, I do not think this can be taken to be an admission of the plaintiff's possession, and, if this statement makes any sence at all, what it means is that, after having obtained the interim injunction in their favour, the plaintiffs had trespassed on the properties. Moreover, to say that a person is a trespasser does not necessarily mean that person has effectively reduced the property in question to his possession and I am unable to regard the statement in question as an admission proving the plaintiffs' case.

10. On behalf of the 3rd defendant it has been contended that a person in possession without title is not entitled to get an injunction against the true owner. I should think that this matter is concluded by the order of this court in the previous appeal. That apart, whatever the English law might be, it seems to be the policy of the Indian law that a person in possession, albeit without title, is entitled to remain in possession, even as against the lawful owner until evicted in due course of law. The lawful owner is not entitled to take the law into his own hands and throw out the person in possession. This is the policy underlying both sections 145 of the Criminal Procedure Code and section 9 of the Specific Relief Act; and it is significant to note that under section 54 of the Specific Relief Act, an injunction may be granted not merely to protect a plaintiff's right to property but also to protect his enjoyment thereof. True, the grant of an injunction is discretionary, but the discretion must be exercised in accordance with the policy of the law which, as I have already said, is that a person in peaceful possession should be maintained in possession until evicted in due course of law. If a person in possession is dispossessed, he can bring a suit under section 9 of the Specific Relief Act within six months of the dispossession and recover the property even though he has no title and his dispossessor has. If that be so, why should the court not prevent the dispossession and why should it insist on his being actually dispossessed before it gives him relief? The decision of the Judicial Committee in Ismail Ariff v. Mohamed Ghoas (I.L.R 20 Calcutta 834) and of a division bench of the Bombay High Court in Fakirbhai v. Maganlal (A.I.R 1951 Bombay 380) throw some light on the matter though they do not go to the extent of saying that a person in peaceful possession can get an injunction even as against the true owner.

11. I allow the appeal and dismiss the plaintiffs suit with costs throughout.