DURAI ELUMALAI Vs. N KAMALAMMAL

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment in A. S. No. 23/1994 on the file of the Court of Additional Subordinate Judge, Chengalpattu. The Defendant in O. S. No. 50/1992 on the file of the District Munsif, Maduranthakam, who has lost his defence in both the Courts below, is the appellant herein. The suit property is five cents of land in S. No. 61/2b2 in Vilagam village.

(2.) THE averments in the plaint relevant for the purpose of deciding this second appeal are as follows: the plaintiff is entitled to 84 cents in S. No. 61/2b2. The plaintiff had executed a sale deed in the year 1971 in respect of 40 cents out of 84 cents in S. No. 61/2b2 in favour of one Pachayammal. The plaintiff had executed another sale deed in respect of 4 cents in S. No. 61/2b2 in the year 1973 in favour of one Venkatesa Pillai and in the year 1974, she had executed another sale deed in respect of the remaining 40 cents in S. No. 61/2b2. In the sale deed executed in the year 1973, survey number has been wrongly mentioned as S. No. 61/1 instead of S. No. 61/2b2. The four boundaries mentioned in the said sale deed is relating to S. No. 61/2b2 and not for S. No. 61/1. Pachayammal who had purchased 40 cents from the plaintiff in the year 1971 has also executed a sale deed in favour of Venkatesa Pillai. After the death of Venkatesa Pillai, his son Perumal is in possession and enjoyment of the entire extent of 84 cents in S. No. 61/2b2, who has dug up a well and obtained electricity connection for the electricity motor pumpset in the same survey number property. The plaintiff has executed a sale deed in respect of S. NO. 60/3a for an extent of 36 cents in favour of the defendants. The plaintiff has not executed any sale deed in respect of the S. No. 61/2b2 in favour of the defendant. By playing fraud on the plaintiff, the defendant had clandestinely included S. No. 61/2b2 for an extent of 5 cents in his sale deed. The said fact is known to the plaintiff only through the counter filed in I. A. No. 266/90 in O. S. No. 73/90. The plaintiff never executed any sale deed in respect of S. No. 61/2b in favour of the defendant. Hence the suit for cancelling the sale deed dated 4. 3. 1980 in favour of the defendant.

(3.) THE defendant in his written statement would contend that as per sale deed dated 4. 3. 1980, the defendant has purchased 36 cents in S. No. 60/3 and 5 cents in S. No. 61/2b2. The total extent of the S. No. 61/2b2 is 85 cents. Out of the above said 85 cents, the plaintiff had executed a sale deed in respect of 40 cents in favour of Pachayammal in the year 1971 and the plaintiff executed a sale deed in respect of another 40 cents in favour of Venkatesa Pillai in the year 1974 and the remaining 5 cents was sold in favour of the defendant under sale deed dated 4. 3. 1980. The allegation in the plaint that by mistake the S. No. 61/2b2 was included in the sale deed in favour of Venkatesa Pillai of the year 1974 instead of S. No. 61/1 is denied as false. The averment in the plaint that the plaintiff came to know that S. No. 61/2b2 has been mistakenly mentioned as survey number property sold under sale deed dated 4. 3. 1980 as S. No. 61/1 and that she came to know about this fact only from the counter filed in an IA in O. S. No. 73/1990 is also denied as false. The suit has been filed only at the instance of one Perumal. The suit is barred by limitation. The plaintiff has executed a sale deed in respect of 5 cents in favour of the defendant in respect of S. No. 61/2b2 in Villagam village.