NAZARETH COOPERATIVE BUILDING SOCIETY LIMITED Vs. KANAKARAJ DIED

JUDGEMENT

(1.) The plaintiff as appellant has come forward with this Second Appeal against the judgment and decree dated 31.3.1992 and made in A.S. No. 99 of 1989 on the file of the learned II Additional District Judge, Tirunelveli, confirming the judgment and decree dated 21.4.1989 and made in O.S. No. 264 of 1983 on the file of the learned Subordinate Judge, Tuticorin.

(2.) The facts that are necessary for disposal of this Second Appeal are as follows: The property described in the plaint belonged to the defendant and the said house was constructed by him by borrowing loan from the plaintiff Society. The defendant had defaulted to repay the loan amount and, therefore, the suit property was brought to sale in public auction by the plaintiff Society as per the Award passed by the defendant under the Tamil Nadu Co-operative Societies Act and Rules, 1983. The property was sold in auction on 30.9.1977 and the sale was confirmed in favour of the plaintiff Society on 20.5.1978. The plaintiff has taken possession of the said house as owner thereof while one Abdul Muthalif was in possession of the property as tenant on a monthly rent of Rs.50/-. The plaintiff filed a suit in O.S. No. 688 of 1979 on the file of the Court of District Munsif, Srivaikuntam, against Abdul Muthalif for eviction and for arrears of rent of Rs.1200/-. The said Abdul Muthalif resisted the above said suit stating that the rent for the demised premises was Rs.25/- per month, that possession of the demised premises was not taken by the plaintiff Society, that the rent for the demised premises was paid to the defendant and that, therefore, the plaintiff Society is not entitled to any relief in that suit. The suit was disposed on 24.4.1981 wherein decree for payment of arrears of rent was granted while refusing to order for eviction against Abdul Muthalif from the demised premises. The plaintiff Society preferred an appeal in A.S. No. 148 of 1981 on the file of the Subordinate Court, Tuticorin, against the judgment and decree dated 24.4.1981 and made in O.S. No. 688 of 1979. The appeal filed by the plaintiff Society as appellant was dismissed on 18.12.1982 but with a finding that the plaintiff Society is the absolute owner of the demised property. The said Abdul Muthalif continued to be in possession of the demised premises as a tenant and he vacated the same on 25.01.1983 by sending a letter dated 28.01.1983 to the plaintiff Society. The possession of the said premises was delivered to the plaintiff Society on 31.01.1983 through Mohammed Hussain, brother of Abdul Muthalif. From that date, the plaintiff Society is in possession and enjoyment of the said property. The defendant, who has no right, title and possession to the suit property, trespassed into the suit property on 28.02.1983 and remains in possession. He had also cut and removed two trees of value Rs.200/- on 23.4.1983. A complaint was given to the Police in connection with the same. A notice was issued to the defendant by the plaintiff Society on 25.4.1983 to deliver possession of the demised premises along with damage of Rs.200/- and after receipt of the said notice, the defendant sent a reply to the same on 04.5.1983 containing untenable allegations. In the said reply notice, the defendant had claimed ownership to the demised premises. It is under the said circumstances, the plaintiff has come forward with the suit for declaration of title of the Society, for possession and for damages as claimed in the plaint.

(3.) The defendant resisted the suit claim on the following grounds: The suit property was sold in auction in favour of the plaintiff Society and the same was confirmed on 20.5.1978. Even then, the plaintiff Society is not the absolute owner of the suit property. The defendant is not a party to the suit in O.S. No. 688 of 1979 and also the appeal in A.S. No. 148 of 1981 and, therefore, the said decisions will not bind the defendant. The suit was barred under Section 47 as well as under Order II Rule 2 of the Code of Civil Procedure. The suit property was not delivered to the plaintiff Society by Abdul Muthalif, through his brother, as claimed by the plaintiff. Abdul Muthalif, who was a tenant under this defendant, delivered possession to this defendant on 26.01.1983 and this defendant is in possession and enjoyment of the said property from then. The defendant has not trespassed into the suit property after 31.01.1983 as alleged by the plaintiff. There was no action on the complaint given by the plaintiff against the defendant because of its falsity. Since the plaintiff Society had not taken delivery of possession by filing a petition within one year from the date of becoming absolute owner, the suit is not maintainable. Accordingly, the defendant has sought for dismissal of the suit.