AJITHA Vs. ATTINGAL MUNICIPALITY

JUDGEMENT

(1.) Plaintiff is the appellant. Suit was initially filed for a decree of injunction, but, later, amended for the relief of declaration of title and possession of the suit property as well. The trial court decreed the suit in favour of the plaintiff, but, in appeal, the lower appellate court reversing that decree, non-suited the plaintiff. Feeling aggrieved, the plaintiff has preferred this second appeal. Notice on admission was issued to the respondent and the records of the case were called for. After service of notice and receipt of records, the appeal was heard to consider its entertain ability as to whether any substantial question of law emerge for consideration in the appeal by this Court.

(2.) Suit property is 30 cents of land comprising buildings situated within the bounds of the respondent - a local authority. Plaintiff claimed title and possession over the suit property under Ext. A1 gift deed executed by her mother. The dispute involved in the suit was practically centered over a building put up in two cents of land in the suit property for starting an 'anganvadi'. Plaintiff alleged that an anganvadi was started in a building in the plaint property five years before the institution of the suit by the Social Welfare Department of the Government. She was appointed as an instructor in the anganvadi during 1990, and thereafter, with the contributions from the public, construction of a new building in the suit property, with more conveniences, to operate the anganvadi proceeded with, but before the completion of that construction, the Social Welfare Department, shifted the anganvadi to another building close to the plaint property. However, when the plaintiff took steps to start a tuition centre in the building constructed for the anganvadi, the respondent, local authority, caused obstructions contending that the building belong to the respondent. Suit claim for injunction, on the allegations as above, being resisted by the defendant contending that there was a surrender of two cents of the plaint property by the mother of the plaintiff, the previous title holder, for putting up an anganvadi in such land, with the funds advanced by the Social Welfare Department of the Government and under the supervision of the respondent local authority, the building was constructed, the plaintiff amended the suit for declaration of her title and possession over the suit property. The defendant resisting such reliefs also, contended that over the two cents of land, which had been surrendered by the mother of the plaintiff, the building was put up with the funds given by the Social Welfare Department and the District Collector for starting an anganvadi, and as such, the plaintiff was not entitled to any relief. A sum of Rs. 15,000/- was provided by the Social Welfare Department and another sum of Rs. 1,00,000/- by the District Collector for construction of the building, and with such funds, the building was put up on the two cents of land surrendered by the mother of the plaintiff and the allegation of the plaintiff that the building was put up with the funds of the public is false, was the case of the defendant local authority submitting that the suit had been laid on false allegations to snatch the possession of the building.

(3.) The materials placed by both sides consisted of PWs. 1 to 3 and Exts. A1 and A2 for the plaintiff and DWs. 1 to 3 and Exts. B 1 to B3 for the defendant. The trial court held that in the case where the title of the plaintiff over the suit property stood conceded by the defendant there was absence of any convincing material to substantiate its contention of a valid surrender of two cents of property by the mother of the plaintiff in accordance with the Rules and also putting up construction of an anganvadi with the funds of the Social Welfare Department of the Government. In that view of the matter, the trial court decreed the suit in favour of the plaintiff, as applied for. In the appeal preferred by the defendant, impeaching the decree of the trial court, the lower appellate court, after re-appreciating the materials tendered in the case, differing from the conclusion drawn by the trial court, holding that there was surrender of two cents of plaint property in favour of the defendant and the building was constructed in such land as contended by the defendant, reversed the decree and non-suited the plaintiff.