MERCY Vs. PONNUSAMY

JUDGEMENT

(1.) RESPONDENT/plaintiff has filed O. S. No. 420/1999 for declaration and Permanent Injunction. According to the Plaintiff, the first defendant, who is his sister, had executed an Agreement of Sale for 35 cents of the suit Survey Number, on 26. 02. 1977. D-1 did not execute the Sale Deed as per the Agreement of Sale within the stipulated period. So the Plaintiff has filed the suit for Specific Performance of contract, in O. S. No. 177/1981. The suit has been decreed in favour of the Plaintiff and the Plaintiff has taken possession of the Suit Property. The Appellate Court reversed the Judgment and Decree in o. S. No. 177/1981. However, the Plaintiff who is in possession and enjoyment of the Suit Property and has constructed building and was residing in it with his family. It is alleged that the first Defendant has made fraudulent transactions on 29. 09. 1996 in favour of Defendants 2 and 3, who have attempted to trespass into the Suit Property on 01. 10. 1999. Hence the Plaintiff has filed the suit for declaration of his title and possession and also for Permanent Injunction restraining them from trespassing into the Suit Property.

(2.) EXPARTE Decree was passed on 21. 12. 1999. The second defendant/mercy had filed I. A. No. 292/2001 under Section 5 of the Limitation Act to condone the delay of 342 days in filing the application to set aside the exparte Decree. According to the second Defendant, she was not served with any suit summons. Suppressing the earlier suit, Plaintiff has filed O. S. No. 420/1999 and obtained an exparte Decree behind the back of the second Defendant. The second Defendant prayed to condone the delay, contending that if the exparte decree passed against her is not set aside, she will be subjected to great hardship and injury, in view of the prior litigation between the parties and the Judgment and Decree in the previous litigation.

(3.) THE property in dispute relates to R. Sy. No. 138/9 40 cents in Ezhudesam Village with the building thereon bearing D. No. 6/59a. THE revision Petitioner/defendant claims right and title to an extent of 17 cents through a Sale Deed dated 29. 09. 1996 (Date of Sale Deed not correctly known from the typed set of papers ). According to the 2nd Defendant she has obtained patta and is also paying House Tax for the same. On the other hand, the plaintiff claims right to be in possession, pursuant to Sale dated 26. 02. 1977, said to have been executed by the first Defendant for 40 cents in the suit survey Number. O. S. No. 420/1999 is the third round of litigation between the parties. In the first round of litigation, Plaintiff has filed O. S. No. 177/1981 for Specific Performance on the basis of the alleged Agreement of Sale in his favour. That suit was decreed, which was reversed by the Appellate Court. Subsequently, the Plaintiff has filed O. S. No. 111/1998 before the District munsif, Kuzhithurai, including the very same property, which was the subject matter of the earlier suit. In that suit, the Revision Petitioner/d-2 was also impleaded as D-4. That suit in O. S. No. 111/1998 was dismissed by the District munsif, Kuzhithurai.