SUNDARAMBAL Vs. SHANMUGAM

JUDGEMENT

(1.) This Second Appeal has been filed against the Judgement and Decree dated 11.01.2010 passed in A.S.No.87 of 2009 on the file of the II Additional Subordinate Judge, Salem reversing the judgement and decree dated 15.04.2009 passed in O.S.No.361 of 2008 on the file of the Principal District Munsif Court, Salem.

(2.) The first plaintiff is the mother of the second plaintiff. The suit property was purchased by the first plaintiff by virtue of a registered sale deed dated 12.02.1976 from one Thangavel son of Muthusamy Gounder and his minor sons Boopathy and Saravanan represented through their father and his wife Lakshmiammal. From then onwards, the first plaintiff was enjoying the suit property along with the second plaintiff. The defendants have filed a false suit in O.S.No.178 of 1997 against one Manickkam and others for partition and separate possession in respect of 1/4 th share. The defendants were aware that the first plaintiff's vendor (who is 9 th defendant in O.S.No.178 of 1997) has sold his 1/4 th share in favour of the first plaintiff. Hence on the date of suit the first plaintiff's vendor Thangavel had no right in the suit property. But the defendants have filed the said suit without impleading the first plaintiff as a party.

(3.) The defendants colluded with the plaintiffs and consequently, got an admission decree for partition passed in O.S.No.178 of 1997 and final decree was also passed according to the choice of the defendants. On the basis of the final decree, the defendants have filed execution proceeding for delivery of the property in the enjoyment of the plaintiffs. At that point only, the plaintiffs came to know about the fraudulent decree got in O.S.No.178 of 1997 by collusion between the defendants and others. After purchasing the suit property from Thangavel, the plaintiffs have made several improvements by spending large amount of money. As against these plaintiffs, the decrees passed in O.S.No.178 of 1997 are null and void. Hence the plaintiffs have filed this suit for declaring both preliminary decree and final decree passed in O.S.No.1843 of 2004 and in I.A.No.528 of 2005 are null and void and also for consequential injunction for restraining the defendants from executing the final decree and restraining them from interfering with the plaintiffs' possession and enjoyment of the suit property. The written statement:-