JUDGMENT :

PRAYER: This Appeal Suit filed under Section 96 of the Civil Procedure Code, to set aside the decree and judgment made in O.S.No.93 of 2014 on the file of the III Additional District Judge, Salem dated 11.12.2015.

This Appeal Suit is directed against the judgment and decree passed in O.S.No.93 of 2014 dated 11.12.2015 on the file of the learned III Additional District Judge, Salem.

2. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the Trial Court.

3. The suit is filed for declaration and permanent injunction in respect of the suit property. The case of the plaintiff is that the suit property belonged to the first defendant as per the preliminary decree passed in O.S.No.18 of 2010 dated 08.12.2011 on the file of the Fast Track Court No.2, Salem. The first defendant filed suit against her brothers and the suit property was allotted in her favour. Thereafter, the first defendant had executed a registered gift settlement deed in favour of the plaintiff on 08.03.2012. From the date of the gift settlement deed, the plaintiff had taken possession of the suit property and he is in possession and enjoyment of the same. In the meanwhile, under the influence of defendants 2 to 4, the first defendant executed a registered cancellation deed dated 03.07.2012 unilaterally. On the same day, the first defendant executed another gift settlement deed in favour of the plaintiff and the defendants 2 to 4. The said cancellation deed and the subsequent gift settlement deed executed by the first defendant are void-ab-initio. Once, the first defendant had lost her title to the suit property, after execution of registered settlement deed in favour of the plaintiff, she has no title over the property. On the strength of the settlement deed executed in favour of the defendants 2 to 4, they created encumbrance by execution of agreement for sale with the defendants 5 and 6. Hence, the suit for declaration and permanent injunction.

4. Resisting the same, the defendants filed a written statement stating that the suit property originally belonged to the first defendant as per the preliminary decree passed in O.S.No.18 of 2010. The first defendant was allotted the suit property and on compulsion, the first defendant executed the alleged gift deed in favour of the plaintiff, that too without the knowledge of the defendant 1. After coming to know about the settlement deed, which was obtained fraudulently by the plaintiff, the first defendant had executed a cancellation deed and also another settlement deed dated 03.07.2012. When that being so, without challenging the cancellation of settlement deed and another settlement deed dated 03.07.2012, the suit filed challenging the subsequent agreement for sale, is not maintainable and liable to be dismissed.

5. On completion of pleadings of the both sides, the Trial Court framed the following issues:-

“(i) Whether the plaintiff is entitled to the relief of declaration over the suit property?

(ii) Whether the plaintiff is entitled to the relief of permanent injunction?

(iii) to what other relief?”

6. On the side of the plaintiff, he was examined as P.W.1 and the documents were marked as Ex.A.1 to Ex.A.6. On the side of the defendants, D.W.1 was examined and no documents were marked.

7. On a perusal of the oral and documentary evidence, the Court below decreed the suit in favour of the plaintiff. Aggrieved by the same, the appellant/second defendant alone preferred this Appeal Suit.

8. The learned counsel for appellant/second defendant submitted that Ex.A.1 was obtained by the plaintiff by misrepresentation and he played fraud, that too without knowledge of the first defendant. Thereafter, it was not acted upon and the first defendant rightly cancelled the gift deed by cancellation deed and the same was duly registered. The plaintiff had executed the alleged settlement deed by undue influence by fraud and as such, the plaintiff did not approached the Court wi