MARIAM Vs. NARAYANAN THRATHAR NAMBOORIPAD

JUDGEMENT

(1.) This second appeal arises out of a suit to recover the sum of Rs. 94-8-6 paid by the plaintiff by way of land tax to Government for the suit property for the years 1120 to 1131. The pattah for the property was in the name of the plaintiff, but the property was in the possession of one Poranchu from the year 1060. He assigned his rights by Ext. D 7 in the year 1119 to the first defendant. In that year, the plaintiff sued the first defendant and her husband the second defendant, in O. S. 208 of 1119 for recovery of the suit property, alleging that it was an accession to the adjoining property mortgaged by the plaintiff; the suit was ultimately dismissed by the Cochin High Court, by Ext. D 3 judgment. The plaintiff sued them again in O. S. 103 of 1124, alleging that the property was held by them on oral lease; that suit also was ultimately dismissed by the High Court, so far as the suit property was concerned, by Ext. D 4 judgment. The plaintiff, having paid land tax in the meanwhile for the period aforesaid, has sued the defendants for reimbursement. The Munsiff dismissed the suit, while the Subordinate Judge in appeal gave the plaintiff a decree. The first defendant has come up in second appeal.

(2.) The first contention in second appeal was, that the claim for reimbursement is not sustainable, whether under S.69 or S.70 of the Indian Contract Act. The first defendant has a case, that she applied for the transfer of pattah to her name soon after Ext. D 7 and that this was successfully opposed by the plaintiff. However, there has been a live dispute between the plaintiff and the first defendant as to the title to the property ever since Ext. D 7, the plaintiff trying to recover the property, alleging in the first suit that it was held by the first defendant as an accession to the mortgaged property and in the second suit as a lessee. In these circumstances, it is more than clear, that the plaintiff had been paying land tax more in support of his alleged title to the property than with an intention to benefit the defendants. The latter had no option to refuse the benefit of the payment. It is not the law under S.70, that a benefit can be thrust on a person, to make him liable for reimbursement. In State of West Bengal v. M/s. B. K. Mondal & Sons AIR 1962 SC 779 at p. 788 the Supreme Court said:

(3.) S.69 of the Contract Act is as follows: