DHANALAKSHMI Vs. DHANAKSHIMOORTHY

JUDGEMENT

(1.) Challenging the judgment of the learned subordinate Judge, Cuddalore made in A. S. No.36 of 1993, defendants 1 and 2 whose defence plea has been rejected, have brought forth this Second appeal.

(2.) The short facts which lead the plaintiff to seek the relief of declaration and permanent injunction in respect of the suit properties are as follows: the suit properties originally belonged to the first defendant who sold the same on 4.9.1969 for a consideration of Rs.200/-. It was a valid sale and in so far as the second item is concerned, it was mistakenly described. When it was questioned, the first defendant replied that there was no encumbrance over the same. Subsequently it was found that the property was mortgaged to one Subburaya Gounder and for redemption of the same, the plaintiff filed O. S. No.44 of 1978. Pending suit, Subburaya gounder died and the first defendant was also added as second defendant and in so far as the second item of the property is concerned, compromise was entered on 26.11.1980 whereby survey number was corrected and the plaintiff was put in possession and thus both the properties are in possession of the plaintiff. Plaintiff has been paying kist for the first and second item of properties. While the matter stood thus, the defendants attempted to interfere with the possession of the properties with the plaintiff and also questioned the title. Under such circumstances, the suit has been filed.

(3.) The first defendant filed a written statement stating that the alleged sale deed dated 4.9.1968 was not genuine, but it was sham and nominal. In order to escape from the clutches of the creditors, the first defendant has executed such a sale deed. In so far as the second item is concerned, it was also not shown as one of the item of sale and thus the plaintiff cannot claim right over the second item of property. In so far as the second item of property is concerned, the first defendant was set exparte and hence it is not binding on the first defendant and apart from this, there was also a settlement deed executed by the owner of the property.