Madras High Court
The Secretary vs K.Lakshmi on 11 April, 2022
S.A.No.224 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.224 of 2022
and C.M.P. No.4445 of 2022
The Secretary,
Primary Agriculature Cooperative Society,
Veeraperumanallur. .. Appellant
Vs.
1. K.Lakshmi
2. The Deputy Registrar,
Cooperative Societies,
Cuddalore. .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, as against the judgment and decree dated 29.04.2019 made in A.S.
No.9 of 2017 on the file of the Subordinate Judge, Panruti confirming the
judgment and decree dated 27.01.2017 made in O.S. No.12 of 2012 on the
file of District Munsif, Panruti.
For Appellant : Ms. V.Suguna
For Respondents : Ms. R.Meenal for R1
: Mr. P.Harish,
Government Advocate (C.S.) for R2
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S.A.No.224 of 2022
JUDGMENT
The second defendant in the suit in O.S. No.12 of 2012 on the file of
District Munsif Court, Panruti, is the appellant in the above second appeal.
The first respondent in this appeal as plaintiff filed the suit in O.S. No.12 of
2012, for declaration of title to the suit property and for consequential
permanent injunction restraining the defendants and their men from holding
any auction sale or bringing the suit property for sale either on 23.01.2012 or
on the subsequent dates.
2. The case of the first respondent in the plaint is that she purchased
Items 1 and 3 of the suit property under registered sale deed dated
24.06.1981 and Item 2 of the suit schedule property under a subsequent sale
deed date 07.08.1986 for proper and valid consideration. It is further stated
that she is in exclusive possession and enjoyment of the property as an
absolute owner and that no one has any right or title over the property of
plaintiff as described in the plaint. The plaintiff also referred to the mortgage
created by her in respect of the suit property in favour of one Manjula. While
so, the first defendant served notice on the plaintiff stating that the first
defendant had obtained an award as against the plaintiff and her husband. It
is the case of the plaintiff that she never received any summons before award
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S.A.No.224 of 2022
and that she did not owe any money to the defendants. Since the property
belonged to the first respondent is sought to be brought for sale for the
amount to be realised from the plaintiff's husband, the suit is filed for
declaration of title and for consequential injunction.
3. The suit was contested by defendants 1 and 2 mainly on the ground
that the surcharge proceedings were initiated against the husband of first
respondent and have became final in C.M.A. No.92 of 1994 and that the
property is brought to sale after due notice to the plaintiff.
4. The trial Court framed a specific issue whether the property is in
enjoyment of first respondent and whether the defendants can proceed
against the property of plaintiff for the money to be recovered from the
plaintiff's husband. The trial Court specifically framed the issue whether the
previous proceedings initiated against the husband of first respondent will
operate as res judicata as against the plaintiff in the present suit. The trial
Court specifically rejected the plea of res judicata after recording reasons.
The main contention is that the properties of first respondent were brought
by her husband out of his money and that the plaintiff is only a name lender.
Even though the properties were purchased in the name of first respondent
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S.A.No.224 of 2022
before the benami transaction (Prohibition Act 1988), the trial Court held
that the properties which are sought to be attached by the appellant for the
dues of first respondent's husband, is not permissible. It is also held that the
appellant failed to prove that the property was purchased in the name of
plaintiff out of the funds provided by her husband against whom surcharge
proceedings were initiated by the appellant. After answering all the issues in
favour of the plaintiff, the trial Court decreed the suit as prayed for.
5. Aggrieved by the findings of the lower Court, the appellant
preferred an appeal in A.S. No.9 of 2017 before the Sub-Court, Panruti. The
lower appellate Court also confirmed the findings of the trial Court on all
issues and dismissed the appeal. Aggrieved by the concurrent findings of
the Courts below, the above second appeal is preferred by the second
defendant in the suit.
6. In the memorandum of grounds of appeal, the appellant has raised
the following substantial questions of law :
i) Whether the Courts below committed error in law by ignoring the vital
documentary evidence adduced on behalf of the appellant namely Ex.B1 to B4
which would establish the appellant's right to auction the suit properties?
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S.A.No.224 of 2022
ii) Has not the courts below committed grave illegality in not framing
the proper point for consideration as is required under Order 41 Rule 31
C.P.C.?
iii) Whether the judgment of the Courts below is vitiated by failure to
apply the correct principles of law and consider the entire evidence on record ?
iv) Whether the First Appellate Court being the final court of fact is
right in confirming the judgment of the trial Court particularly when there are
many reasons to defer from the findings of the trial Court on all the issues ?
v) Whether there is any perversity or illegality in the judgment rendered
by the Courts below ?”
7. The plaintiff has proved her title to the suit property by producing
the original sale deeds and the revenue records to show that the suit
properties are in the name of plaintiff from the date of purchase in the year
1981 and 1986. The patta stands in the name of plaintiff / first respondent.
The plaintiff has also dealt with the property by executing a mortgage. In
such circumstances, from the voluminous of documents and the evidence of
P.W.1 and P.W.2, the Courts below have concurrently held that the title to
the suit property is proved by plaintiff.
8. Learned counsel for the appellant relied upon the documents Ex.B1
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S.A.No.224 of 2022
to B4 to state that the documents would establish the appellant's right to
proceed with the properties of plaintiff. Both the Courts have considered the
documents Ex.B1 to B4 and held that the plaintiff is not a party to the
proceedings initiated by the defendants against the plaintiff's husband. If the
plaintiff is not a party to the proceedings, the properties of plaintiff cannot
be brought to sale unless the award is also against the plaintiff / first
respondent.
9. This Court, after going through the findings of the Courts below, is
unable to find any perversity or irregularity in the judgment of Courts below.
Having regard to the facts admitted and found by the Courts below, this
Court is unable to appreciate any substance in any of the substantial question
of law raised by the appellant in the above appeal.
10. In fine, the Second appeal is devoid of any merits and hence,
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
11.04.2022
bkn
Index: Yes / No
Speaking order / Non-speaking order
To:
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S.A.No.224 of 2022
1. The Subordinate Judge, Panruti.
2. The District Munsif, Panruti.
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S.A.No.224 of 2022
S.S.SUNDAR, J.,
bkn
S.A. No.224 of 2022
11.04.2022
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