Purchaser, if a necessary party to suit for specific performance.

This second appeal by the 3rd defendant is against the reversing judgment in A.S.No.49 of 1981 on the file of the Subordinate Judge, Salem, decreeing the suit O.S.No.2587 of 1973 on the file of District Munsif, Namakkal for declaration of plaintiff/1st respondent’s title to suit property and consequential injunction thereon. The plaintiff claimed title by purchase from the second defendant/3rd respondent under Ex.A-1 dated 3. 1969.

2. Earlier, the second respondent/first defendant’s wife and children brought the suit property to court auction to realise their decree for maintenance against the first defendant and themselves purchased the suit property. Then, they sold it to the second defendant under Ex. A-5 dated 15. 64. The second defendant in turn, entered into an oral sale agreement with the first defendant for selling the property to the first defendant and subsequently D-1 also filed O.S.No.299 of 1967 against the 2nd defendant for specific performance of the said agreement. While the said suit was pending, the plaintiff purchased the suit property as stated above. The suit was dismissed on 17. 1970 as borne out by Ex.A-2 judgment. Ex.B-1 is the copy of the suit register extract in relation to O.S.No.299 of 1967. But, in the appeal filed by the first defendant herein A.S.No.29 of 1972, the suit was decreed ex parte on 23. 1973 (Ex.A-3 is the judgment). The plaintiff herein sought in I.A.No.26 of 1973 to get himself impleaded in the suit, after the said appeal was disposed of on 23. 1973. The said I.A. was dismissed on 12. 1973 (Ex.A-4 is the order). Pursuant to the specific performance decree as stated above, the sale deed Ex.B-2 dated 12. 1975 was executed by the court on behalf of the second defendant and in favour of the first defendant.

.3. The trial court in dismissing the present suit O.S.No.2587 of 1973, applied the doctrine of lis pendens enunciated under Sec.52 of the Transfer of Property Act. No doubt, the plaintiffs contention was that there was collusion between the first and 2nd defendants in relation to O.S.No.299 of 1967 proceedings and that therefore Sec.52, Transfer of Property Act was not attracted, but the trial court found that the said collusion was not proved. However, the lower appellate court in AS.No.49 of 1981 held that the burden of proof of “no collusion” was on the defendants and that the said burden had not been discharged and that hence, the above said Sec.52 was not attracted. So it decreed the suit. Hence the second appeal by the 3rd defendant who is the agreement holder from the first defendant in relation to the suit property, having earlier agreed to purchase the suit property from the 1st defendant. D-1 is the second respondent in this second appeal. In this second appeal D-1 & D-3 (R-2 and the appellant) said together and in fact the counsel for R-2 actually represented both R-2 and the appellant and argued the appeal with the permission of the counsel for the appellant.

.4. The only main question in this second appeal is this: Whether there was collusion between D-1 and D-2 in prosecuting O.S.No.299 of 1967 and the appeal therefrom. The main submission on behalf of the appellant as well as R-2 well as R-2 is that the lower appellate court erred in placing the burden of proof on the defendants. It is also pointed out that the lower appellate court erred in assuming that Ex.A-1 sale in favour of the plaintiff was only while A.S.No.29 of 1972 was pending.

.4-a. I may straight-away say that the lower appellate court actually erred in observing that Ex.A-1 sale was while A.S.No.29 of 1972 was pending. As already stated while Ex.A-1 was dated 6. 1969, O.S.No.299 of 1967 was dismissed only subsequently on 17. 1970 and thereafter only A.S.No.29 of 1972 was filed.

5. Regarding the burden of proof, since the entire evidence is before the court, the burden of proof may not loom large and it has to be only seen on the entire evidence let in, what conclusion could be reached.

6.