BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2021 CORAM:

THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN S.A.(MD)No.624 of 2021 and C.M.P.(MD)No.8315 of 2021 Antony @ Manickam ... Appellant/ Appellant / 1^stDefendant Vs.

1.Amalorpavam ... Respondent / Respondent / Plaintiff

2.Savarinadhan @

Robert Savarinathan

3.Aacharyam ... Respondents 2&3 / Respondents 2&3 Defendants 2 and 3 PRAYER : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 22.11.2019 passed in A.S.No. 28 of 2018, on the file of the Sub Court, Sivagangai, confirming the Judgment and Decree, dated 12.01.2018, passed in O.S.No.117 of 2011, on the file of the District Munsif Court, Sivagangai.

For Appellant : Mr.P.Santhanakrishnan For Respondent : Mr.N.Tamilmani

J U D G M E N T

The Second Appeal is directed against the judgment and decree, dated 22.11.2019 made in A.S.No.28 of 2018, on the file of the Sub Court, Sivagangai, confirming the Judgment and Decree, dated 12.01.2018, passed in O.S.No.117 of 2011, on the file of the District Munsif Court, Sivagangai.

2.For the sake of convenience, the parties are referred to as, as described before the trial Court.

3.The case of the plaintiff, as per the averments made in the plaint, in brief, is that the suit property, initially belonged to one Vedhamuthu S/o.Mariyarose and Marikulanthai Udaiyar S/o.Gnanaprakasam of Pulikanmai Village. On 10.04.1978, the plaintiff purchased the 'A' suit schedule property from the said Vedhamuthu S/o.Mariyarose and Marikulanthai Udaiyar S/o.Gnanaprakasam and he is in exclusive possession and enjoyment of the same from the date of purchase. The suit property is an extent of 38 cents. The defendants 1 and 2 have no right, whatsoever, in the suit 'A' schedule property. Taking advantage of old age of the plaintiff, the 1^st defendant constructed a house, to an extent of 642.24 sq.ft, in suit 'A' schedule property, belonged to the plaintiff. Further, the 1^st defendant colluded with the 2^nd defendant sold part of the property of the plaintiff, to an extent of 870 sq.ft., to the 3^rd defendant, and executed a registered sale deed, on 01.07.2004. The four boundaries mentioned in the sale deed is a false one. The entire suit property is absolute and self acquired property of the plaintiff. Since, the defendants have denied the title of the plaintiff in respect of part of the property, the suit is filed for the relief of declaration that the suit property exclusively belonged to the plaintiff and to remove the illegal construction made in schedule 'A' and 'E' property by the defendants 1 and 3 and hand over the possession to the plaintiff and for mandatory injunction.

4. The suit was resisted by the 1^st defendant by filing a counter affidavit contending among other things that the plaintiff has not approached the court with clean hands and with an ill-intention, he has filed the suit. The part of suit schedule property is belonged to the 1^st defendant and the suit schedule property is the ancestral property and the 1^st defendant is in possession and enjoyment of the property. A part of suit property, to an extent of 870 sq.ft., was sold to the 3^rd defendant, through the registered sale deed, dated 01.07.2004 and the 3^rd defendant, in the same year, constructed a house in the purchased property and it was well known to the plaintiff. The 1^st defendant constructed a house and obtained an electricity service connection, in the property and living there more than 50 years. Suppressing the fact that there was a house already existed, the suit has been filed by the plaintiff. There was a house in the suit property, before the date on which the plaintiff said to have purchased the suit property. Plaintiff created forged documents. It is unbelievable that the plaintiff did not know the house constructed by the 1^st and 3^rd defendants. The plaintiff has no right to state that 1^st defendant should not construct the house, when the house was constructed by the