GCVINDAPPA NAIDU Vs. SRINIVASALU NAIDU

JUDGEMENT

(1.) This second appeal has been filed by the 1st defendant, as appellant, against the judgment and decree dated 14.7.1986 and made in A.S. No. 71 of 1985 on the file of the learned Subordinate Judge, Ami, North Arcot District, confirming the judgment and decree dated 27.9.1985 and made in O.S. No. 78 of 1979 on the file of the learned District Munsif, Cheyyar.

(2.) The brief facts that are necessary for the disposal of the appeal are as follows The plaintiff and defendants 1 and 2 are brothers. The 3rd defendant is the undivided son of the 2nd defendant. The suit properties were purchased by the plaintiff from defendants 2 and 3 under a sale deed, dated 24.11.1977. Since the defendants 2 and 3 refused to register the document, at the instigation of the 1st defendant, the said document was registered compulsorily ori 2.2.1978. The plaintiff has got right and title to the suit properties. The defendants 2 and 3 have executed a sale deed fraudulently in favour of the 1st defendant with regard to the suit properties long after the execution of the sale deed, dated 24.11.1977, in favour of the plaintiff. The document in favour of the 1st defendant was ante-dated as 17.9.1977 by purchasing stamp papers with antedate at Kadaladi. The said document in favour of the 1st defendant was registered only on 23.12.1977 and the said fact will disciose the fact of ante-dating of the said document. That document will not confer any right or title to the 1st defendant, over the ;uit properties. Therefore, the plaintiff filed the suit for declaration of his title to the suit properties and for recovery of possession thereof rom the defendants.

(3.) The 1st defendant resisted the suit claim lade by the plaintiff on the following grounds: The defendants 2 and 3 executed the sale sed dated 17.9.1977 in favour of the 1st sfendant and got the said document regisred on 23.12.1977 for proper and valuable nsideration. The 1st defendant is a bonafide jrchaser for value without notice of the ear r agreement or any transaction in favour of e plaintiff by defendants 2 and 3. The document compulsorily registered in favour of the lintiff cannot prevail over the registered document in favour of the 1st defendant. The plain- has not paid a sum of Rs. 4,000/- out of sale consideration of Rs. 6,000/- and, refore, the document, in favour of the plain, is sham and nominal. No document was cuted by defendants 2 and 3 in favour of plaintiff knowingly and, in any event, if re is any such document executed by the endants 2 and 3, the plaintiff should have undue influence and fraud to get such ument from defendants 2 and 3. The said document should have been brought into existence by the plaintiff and defendants 2 and 3 conspiring together, due to enmity that the plaintiff is having with the 1st defendant for the last five years. In the suit filed for partition with regard to the suit properties and other properties, in O.S. No. 101 of 1961, on the file of the learned Subordinate Judge, Vellore, 2/3rd share in the said properties were given to defendants 1 and 2 jointly and, therefore, the plaintiff as purchaser of an undivided share in the properties has to file a suit for partition and separate possession and not for declaration and recovery of possession, as prayed for in the suit. This Court has no jurisdiction to try the suit. Under the said circumstances, the 1st defendant sought for dismissal of the suit.