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Special Officer v. Kannammal - SECOND APPEAL No.644 of 1997  RD-TN 2415 (20 July 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
SECOND APPEAL No.644 of 1997
Sivagangai Paiyur Pillaivayal
Pudur Road, Sivaganga. ... Appellant 2nd Defendant vs.
W/o.Dharmaraj ... Respondent-1 Plaintiff 2.The Deputy Registrar, Cooperative,
Deputy Registrar's Office,
Sivagangai. ... Respondent-2 1st Defendant 3.Sivagangai Paiyur Pillaivayal
Primary Co-operative Bank,
Through its President ... Respondent-3 3rd Defendant (R-3 was exonerated as per order dt.30-7-01 and given up herein as there is no President as on date) Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 16.04.1996 made in A.S.No.93 of 1995 on the file of Principal District Judge at Sivagangai in reversing the judgment and decree dated 28.07.1995 made in O.S.No.621 of 1991 on the file of the District Munsif, Sivagangai.
For Appellant ... Mr.S.Ramesh for Mr.V.agavachari
For Respondent ... Mr.D.P.Sundaravel for No.1 Mr.A.Sivaji For Respondent ... Mr.K.M.Vijayakumar, No.2 Addl.Govt.Pleader. :JUDGMENT
In this second appeal, challenge is made to the judgment and decree, dated 16.04.1996, of the Principal District Judge, Sivagangai, made in A.S.No.93/1995, whereby the judgment of the trial court in O.S.No.176/1989, dismissing the suit, was reversed and a decree was granted in favour of the plaintiff. The 2nd defendant in the suit is the appellant.
2.The short facts which led the 1st respondent/plaintiff to file the suit for the reliefs of declaration and consequential permanent injunction can be stated thus.
(a)The suit property originally belonged to the mother of the plaintiff as her sreedhana property. At the time of plaintiff's marriage, the said property was gifted to her and thereafter she put-up a house in property and residing there with her husband and children. The original Door Number was 103-A and later it was changed as 32. The plaintiff has been paying the house tax and property tax for the suit property and thus it belongs to her. (b)The plaintiff's husband was working in Paiyur Pillaivayal Primary Co-operative Bank and for the alleged misappropriation of some amount committed by him, a notice was issued by the Bank to the husband of the plaintiff, showing the property of the plaintiff in the notice. The plaintiff sent a notice through her lawyer on 24.01.1989 stating that the said property belonged to her and even then the first defendant sent another notice on 15.03.1989, for which she sent a telegram on 17.03.1989. Thereafter, as the bank was taking steps to bring her property for sale, the necessity arose for her to file the suit for declaration that the suit property belonged to her and also for permanent injunction to restrain the defendants bank from bringing the property for sale.
3.The second respondent, who is the Special Officer of the said Primary Co-operative Bank, filed a written statement stating that the property did not belong neither to the plaintiff's mother nor it was gifted to the plaintiff at the time of her marriage, but the property belonged to one Dharmaraj, the husband of the plaintiff; that originally the suit property belonged to the father of the said Dharmaraj and Dharmaraj put-up a house in the suit property and therefore the alleged claim by the plaintiff is false. Added further, the plaintiff's husband was working in the second defendant Co- operative Bank in the year 1988 and one day, he, without handing over the cash and other accounts, locked the bank and went away and when the bank was opened in the presence of higher officials and accounts were checked, it was found that he misappropriated a sum of Rs.14,365/- and further goods worth Rs.4578.32 were found missing. It is further stated, proceedings were initiated against the said Dharmaraj to recover the above amounts and action was taken to bring the suit property for sale, as he was the owner of the property and therefore the prayer of the plaintiff was to be dismissed.
4.The trial court framed necessary issues, tried the suit and dismissed the same. The plaintiff took it on appeal and the learned appellate judge, on enquiry, took the different view and allowed the appeal and set aside the judgment of the trial court and granted the relief as one prayed for by the plaintiff. Hence the present second appeal has arisen before this Court at the instance of the second defendant. At the time of admission, the following substantial question of law was formulated by this Court for consideration in the second appeal.
"1.Whether the Lower Appellate Court is right in granting the relief of title and consequential relief of injunction solely on the basis of tax receipts without any documentary evidence to prove the source of title?
2.Whether the patta issued during pendency of the suit in the name of the plaintiff would be sufficient to prove the title?
3.Whether the suit as framed without impleading the husband of the plaintiff as party is hit by non-joinder of parties?
4.Whether the judgment and decree under appeal constitutes patent error of law having regard to non-examination of the husband of the plaintiff or any other independent witnesses especially in the absence of any documentary evidence to prove the claim of gift and shreedhana?
5.Whether the judgment and decree under appeal is liable to be set aside on the ground of erroneous approach and opposed to the preponderance of probabilities of the case in the light of the admitted fact that the adjacent owners are paternal legal heirs of husband of the plaintiff and that the plaintiff is not a native of the village where the suit property is situated?"
5.Advancing arguments on behalf of the appellant, the learned counsel appearing for the appellant would submit that in the instant case the trial court marshalled evidence proper and dismissed the suit rightly, but the appellate forum has neither considered the case put-forth by the defendants nor had it appreciated the evidence put-forth by the defendants in the instant case; that the plaintiff came out with the suit seeking for the relief stating that the suit property originally belonged to her mother as her sreedhana property and it was gifted to her at the time of marriage, but no documentary evidence was brought forth or even no oral evidence was adduced to prove the said plea. Added further, in the instant case, Ex.B-1 document, which was a mortgage deed executed by the plaintiff along with her husband and also on behalf of her son on 26.12.1986 in favour of Sivagangai Taluk Housing Society, would be indicative of the fact that the husband of the plaintiff, as owner, joined with his wife, the plaintiff, has executed the mortgage and therefore the plaintiff cannot claim title over the property. Added further, the counsel submitted that the documents marked on the side of the plaintiff and accepted by the first appellate court were come into existence pending proceedings and under such circumstances, they should not have been given any weightage at all. However, there were sufficient evidence to show that for the misappropriation committed by Dharmaraj, the husband of the plaintiff, who is the owner of the suit property, the property was brought for sale and and this evidence was properly appreciated by the trial court and further the trial court found that the plea of the plaintiff that the suit property was gifted to her at the time of her marriage was not proved in the manner known to law and there was no evidence at all and in such circumstances, the appeal has got to be allowed.
6.The Court heard the learned counsel appearing for the first respondent/plaintiff. According to the learned counsel, the suit property was originally belonged to the mother's family of the plaintiff and the same was gifted to her at the time of her marriage and it was she who raised a house in the suit property and got the patta transferred in her name and thereafter making house tax and property tax and thus the plaintiff is the absolute owner of the suit property. Added further, it is true that there was no document to show that the suit property belonged to the mother's family of the property and thereafter it was gifted to the plaintiff at the time of her marriage, but it does not mean that the property belonged to the husband of the plaintiff, namely Dharmaraj and merely because the husband of the plaintiff also joined as a co- executant in the mortgage, it cannot be stated that her husband is the owner of the suit property and it can be brought for sale and thus the first appellate court has properly considered the evidence and rejected the case of the defendants and hence the appeal has got to be dismissed.
7.After careful consideration of the rival submissions made and looking into the materials on record, the Court is of the considered opinion that the second appeal does not carry any merit and it deserves only an order of dismissal at the hands of this Court. In short, as stated above, it is the case of the plaintiff that the suit property was gifted to her at the time of her marriage. According to P.W.1, the plaintiff, in her evidence, her marriage took place in the year 1974. It is true that there is no documentary evidence that the property was gifted to her at the time of marriage. But, it does not mean that the husband of the plaintiff was in enjoyment of the property from that time onwards. All the documentary evidence have been fully marshalled by the first appellate court, namely patta has been issued in favour of the plaintiff, following which she is paying all the kists and thereafter she is paying house tax also. EXs.P-1 to 16 have been completely narrated by the first Appellate Court. Further, without any enquiry by the authorities the patta would not have been transferred in the name of the plaintiff and now the patta stands in her name and she has been paying all kists and taxes and house tax also been assessed in her name. All would be indicative of the fact that she is the owner of the suit property and she has been paying the tax and enjoying the same.
8.The only document which was relied upon by the appellant is Ex.B-1, the Mortgage Deed, executed by the plaintiff for herself and on behalf of her minor son and by her husband Dharmaraj to the Sivagangai Taluk House Building Society on 26.12.1986. It is true that the name of Dharmaraj is also found in Ex.B-1. He is a joint executant. Merely because of the joint execution of a mortgage deed, a person, who is not entitled to a property, cannot be clothed with any right or title over the property in question. In the instant case, merely because Dharmaraj has joined with his wife, who executed a document in favour of a Housing Society in the year 1986, it cannot be stated that he held a right in the property. At this juncture, it remains to be stated, had this plaintiff not having any right in the property, there was no need for the Housing Society to get execution of a mortgage deed by the plaintiff and on behalf of her son also. This would be indicative of the fact that she did had the right in the property. In such circumstances, merely because in Ex.B-1 document the husband of the plaintiff happened to be a joint executant along with the plaintiff, it cannot be held that he was also the owner of the property or he was the absolute owner of the property. In such circumstances, the first appellate court has marshalled the evidence proper and has taken a correct view, which in the opinion of the Court, does not require any interference.
9.Hence the appeal fails and the same is dismissed. No costs. gb.
1.The Principal District Judge,
2.The District Munsif,
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