T VIJAYENDRADAS Vs. M SUBRAMANIAN

JUDGEMENT

(1.) THE defendants 5 and 6, husband and wife, who lost their case before the trial court and the first appellate court are the appellants herein.

(2.) THE brief facts which led to the filing of the suit in O. S. No:1183 of 1982 on the file of the District Munsif, Coimbatore, are as follows:-The suit property in an extent of 8 cents and 116 sq. ft. , within the Coimbatore Corporation limits is a house plot and the same belonged to the third defendant, Venugopal. By a registered sale deed dated 12. 11. 1970, the third defendant sold the suit site to the plaintiff Sakunthala for a sum of Rs. 6,000/= and possession was also delivered. But the property tax arrears for two half years at Rs. 67. 40 per half year was in arrears payable by the vendor. Admittedly, the sale was not informed to the Municipality both by the purchaser (plaintiff) and by the vendor, the third defendant and consequently, no mutation of records was effected. A suit in O. S. No:986 of 1973 was filed by the Coimbatore Municipality for arrears of 6 half years 2/69-70, I and 2/70-71, 1 and 2/71-72 and 1/72-73 for Rs. 406. 76 at Rs. 67. 40 per half year (two half years payable by the third defendant and four half years payable by the plaintiff) against the third defendant, who was the registered owner, claiming a charge. On 2. 8. 1973 the third defendant though entered appearance, but remained ex parte and an ex parte preliminary decree for sale of the charged property was passed on 7. 8. 1973, followed by a final decree being passed on 16. 1. 1976, as seen from Ex. A. 16, suit register. Subsequently, E. P. No. 262 of 1976 was filed for sale of the property for a sum of Rs. 406. 76 fixing the upset price at Rs. 20,000/- in the sale proclamation. Since there was no bidders, E. A. No. 284/79 was filed by the Municipality to reduce the upset price to Rs. 10,000/- and in the affidavit filed in support of the said application the Municipality-decree holder averred that the property cannot be sold for more than Rs. 5,000/- and that it is in a dilapidated condition and that the decree is of 12 years old. The above two reasons found in the affidavit filed in support of the application by the Municipality are false, because the property was only a house site and not a building and therefore dilapidated condition does not arise and the decree was only 3 years old and not 12 years old. The said E. A. No. 284/79 is marked as Ex. A. 9. On 23. 3. 1979 the said application was allowed without notice to the judgment debtor reducing the upset price to Rs. 10,000/ -. On 6. 8. 1979, court auction was conducted and the first defendant, who is the wife of the third defendant-judgment debtor purchased the property for a sum of Rs. 8,010/ -. On 11. 10. 1979, the sale was confirmed and on 21. 3. 1980 possession was delivered through court to the first defendant-auction purchaser. On 22. 8. 1981, the first defendant, auction purchaser sold the property to M/s. Ramans, the 4th defendant who was impleaded later in 1986. On 10. 6. 1982, Sakunthala, the plaintiff filed the present suit against the first defendant, auction purchaser (wife of the third defendant), the second defendant, mother of the third defendant, and the third defendant R. Venugopal, the original owner i. e. , the plaintiff's vendor. However, the decree holder, Coimbatore Municipality was not impleaded as a party in the suit. On 16. 5. 1984, the 4th defendant, M/s. Ramans, sold the property to the fifth and sixth defendants for a sum of Rs. 65,000/- and along with D. 4, D. 5 and D. 6 were also impleaded as parties more than three years after the court sale. The defendants 2 and 4 remained ex parte before the trial court. The plaintiff did not offer herself for cross examination and her auditor was examined as P. W. 1. The defendants 1 and 3 have also not been examined.

(3.) THE trial court decreed the suit as prayed for holding that (i) Ex. A. 1 ale deed by the third defendant give good title to the plaintiff (ii) third defendant's name continued in Municipal Registers and the third defendant suppressed the tax arrears to the Plaintiff; (iii) third defendant remained ex parte and allowed the decree to be passed suppressing the filing of the suit to the plaintiff; (iv) third defendant did not avert the sale by paying the small sum of Rs. 406. 76 when he had ability to pay as admitted by D. W. 1 and thus fraudulently allowed the property to be sold in Court Auction without any objection; (iv) thus the third defendant purchased the property in the name of his wife the first defendant in the court auction sale;