M.KANAGARAJ Vs. M.SIRIRAM

JUDGEMENT

(1.) The defendants, who lost the legal battle in both the Court below has filed the second appeal to set aside the judgment and decree dated 14.10.2005 passed in A.S.No.162 of 2005 on the file of the 2nd Additional Subordinate Judge, Tirunelveli confirming the judgment and decree dated 21.03.2005 passed in O.S.No.666 of 2004 on the file of the 1st Additional District Munsif Court, Tirunelveli.

(2.) The respondent as plaintiff filed a suit for declaration and injunction stating that the 1st plaint schedule property is originally belonged to one V.M.Mohamed Mohideen Sahim. Later, it was sold to the father of the plaintiff viz., Muthaiah Mudhaliar under a registered sale deed dated 07.09.1952. He gifted the same to the plaintiff through the registered settlement deed dated 17.11.1983. The second schedule property is originally belonged to one M.P.M.Mohamed YusuF Rowther and the same has been sold to the father of the plaintiff through a sale deed dated 13.04.1953 and subsequently, it was given to the plaintiff vide settlement deed on 18.11.1983. The plaintiff was in possession of the property and he paid kist in the name of his father. The defendants have no right, title or possession over the suit property. In 1998, the defendant filed a caveat stating that they have purchase some portion of the schedule properties. The sons of V.M.Mohamed Mohideen in collusion with the 5th defendant, filed a suit in O.S.No.822 of 1990 for specific performance, creating some records behind the back of the plaintiff. The plaintiff is not a party to the suit. The created documents are all shame, nominal and fraudulent transactions and the same would not bind upon the plaintiff. The plaintiff came to know the bogus transactions in October 1998 and since, the defendants are attempting to trespass and cut and carry away the thorny trees, the plaintiff constrained to file the suit for declaration and injunction.

(3.) Resisting the same, the 4th and 5th defendants filed a detailed written statement stating that one W.Christhudoss filed a suit to the very same plaint schedule property in O.S.No.9 of 1999 stating that he is the lessee of the property. In the said suit, exparte injunction was granted in I.A.No.27 of 1999 and was made absolute. Hence, the defendants 1 to 4 preferred an appeal in C.M.A.70 of 1999. During the pendency of I.A.No.27 of 1999, the plaintiff filed this suit. The defendants denied the plaintiff's title over the suit properties. O.S.No.822 of 1990 is not a collusive suit. The defendants 1 to 4 purchased the portion of the suit properties on 24.09.1998 through separate sale deed and they are in possession and enjoyment. 5th defendant entered into a sale agreement on 16.07.1982 with one V.M.Syed Ibrahim and his brother V.M.Kather Mohideen with respect of the suit properties and since, they failed to execute the sale deed, 5th defendant filed O.S.No.822 of 1990 and the suit was decreed exparte. Sale deed was executed in favour of the 5th defendant on 22.06.1992 by the learned District Munsif and the suit properties was sub divided on 27.12.1998. Originally, the suit property was Inam property and Syed Ibrahim and Kather Mohideen obtained favourable order in R..I.T.No.42 of 1971 and hence, he prayed for the dismissal of the suit.