BALUSAMY DIED Vs. A KUPPUSAMI NAICKER

JUDGEMENT

(1.) A plea of part-performance is raised for the first time in Second Appeal, when there are no pleadings to that effect, nor evidence and the appellants want to assert a right over 3. 30 acres of valuable land having paid just Rs. 4,000. 00.

(2.) THE defendants are the appellants. THE first respondent filed O. S. No. 208 of 1991 for declaration and recovery of possession from the third defendant. THE third defendant expired pending the suit. His wife and children were brought on record and are the appellants in the present second appeal. THE fifth appellant has since attained majority and the learned counsel for the appellant undertakes to file vakalat for her.

(3.) THE fourth defendant, the third defendant's father filed a written statement denying the plaintiff's right. THE sixth defendant, who is the wife of the third defendant filed a written statement on behalf of the other legal representatives. She admitted that there was an agreement but contended that the plaintiff had misrepresented that the suit property was punjai land and that the third defendant verified with the revenue records and found out that it was Punjai Tharisu. and had also planted Eucalyptus and Casuarina trees, in his own right. It was also alleged that the suit was barred by limitation. THE trial court decreed the suit as prayed for and the Appellate court confirmed the judgment.