ALIMA UMMAL Vs. N MURUGESAN

JUDGEMENT

(1.) THE plaintiff who proved to be unsuccessful in both the Courts below has come forward with this second appeal challenging the judgment and decree of the lower appellate Court, namely Court of the Principal District Court, thoothukudi, dated 07. 08. 2006 made in A. S. No. 90 of 2004 whereunder the judgment and decree of the trial Court, namely Court of the Additional District Munsif, thiruchendur, dated 30. 09. 2003 made in O. S. No. 167 of 1999 were confirmed.

(2.) THE appellant herein had filed the original suit O. S. No. 167 of 1999 on the file of the Additional District Munsif, Thiruchendur for a bare injunction stating that she got possession of the suit property in part performance of an agreement for sale allegedly executed by the first respondent herein/first defendant on 12. 04. 1998. It was also contended by the appellant/plaintiff in the plaint that subsequent to the execution of the said sale agreement, the first respondent/first defendant joined hands with the respondents 2 and 3/defendants 2 and 3 and caused intimidation to the appellant/plaintiff to execute a sale deed in respect of the suit property in favour of the respondents 2 and 3/defendants 2 and 3; that the appellant/plaintiff submitted an objection in writing to Sub-Registrar, kayalpattinam praying that no sale deed in respect of the suit property should be registered; that thereafter, the respondents/defendants made an unsuccessful attempt on 17. 10. 1999 to pluck the coconuts from the coconut trees standing in the suit property which attempt was successfully resisted by the appellant/plaintiff; that even thereafter the respondents/defendants were trying to grab the suit property and that hence, the appellant/plaintiff was constrained to file the suit for injunction to protect her possession obtained in part performance of the agreement for sale executed in his favour by the first respondent/first defendant. It was the further averment made in the plaint that the suit property originally belonged to the plaintiff and she executed a sale deed on 22. 03. 1995 in favour of the first respondent/first defendant as a security for the repayment of a loan and that only pursuant to the said arrangement, the suit agreement for sale dated 12. 04. 1998 was executed and possession of the suit property was also handed over to the appellant/plaintiff in part performance of the contract for sale.

(3.) THE first respondent/first defendant did not contest the suit and chose to remain exparte. The suit was contested by the second and third respondents/defendants 2 and 3. Written statement was filed by the third respondent/third defendant and the same was adopted by the second respondent/second defendant. It was contended therein that the suit of the appellant/plaintiff was not maintainable either in law or on equity; that it was false to contend that the suit property was in possession and enjoyment of the appellant/plaintiff; that the averment found in the plaint to the effect that the first respondent/first defendant joined hands with the respondents 2 and 3/defendants 2 and 3 and compelled the appellant/plaintiff to execute a sale deed in respect of the suit property in favour of the respondents 2 and 3/defendants 2 and 3 was totally false and that the alleged attempt made by the respondents/defendants to trespass into the land and pluck the coconuts from the coconut trees standing thereon was also false. It was the further contention made in the written statement that the suit property was conveyed to the first respondent/first defendant by the plaintiff on 22. 03. 1995 for proper and valid consideration pursuant to which, possession was also handed over to the first respondent/first defendant; that on 23. 07. 1999 the first respondent/first defendant sold the suit property and handed over possession to the third respondent/third defendant for proper consideration; that thereafter it was the third respondent/third defendant who was in possession and enjoyment of the suit property till the date of filing of the suit; that the third respondent/third defendant was not aware of the agreement for sale alleged in the plaint and that the first respondent/first defendant after having sold the property to the third respondent/third defendant demanded more money from the third respondent/third defendant which was turned down and that hence, the first respondent/first defendant, in collusion with the appellant/plaintiff, has caused the suit to be laid in the name of the plaintiff.