ALBERT JAYASINGH Vs. MARIE LOUISE

JUDGEMENT

(1.) THIS appeal has been directed against the decree and judgment in O. S. No. 18 of 1994 on the file of the Additional District Judge, Pondicherry at Karaikal. The defendant, who has lost his case before the trial Court, has preferred this appeal.

(2.) THE short facts of the case of the plaintiff in the plaint runs as follows:the plaintiff Maria Louise is the absolute owner of the plaint schedule property viz. , Manaikat Property of an extent of OH 00a 67 Ca comprised in Ward -F, Block -36, T. S. No. 96, R. S. No. 77/1 part situated at Marunthakidangu Streeet, Karaikal Town. The plaintiff - Maria Louise has filed the suit for declaration of her title against the defendant by name Albert Jayasingh. The plaint schedule property and the adjacent property were originally belonged to one Durairaj, S/o. David of Trichirapalli and he sold the said properties in favour of Paul Lourdesmaria @ Palaniammal, D/o. Samia Pillai, W/o. Paul Ignace, Karaikal for valuable sale consideration on 29. 05. 1962. Paul Lourdesmarie is the mother of the plaintiff, who had executed the settlement deed dated 5. 9. 1992 in respect of the plaint schedule property in favour of the plaintiff, who became the absolute owner of the suit property from the date of the above said settlement deed dated 5. 9. 1992. The plaintiff has sold the rear portion of the northern side of the suit property to an extent of 78ca in T. S. No. 95 to one Indirani and retained the suit property for her own purpose. After purchase of the suit property, the plaintiff's mother had effected mutation in her favour in the revenue records and till date, the patta for the suit property stands only in the name of the plaintiff's mother. At the time of purchase of the suit property, there was a hut in the suit property, which was maintained by the plaintiff's mother. The house tax was assessed only in the name of the plaintiff's mother. The defendant's father Sri. Vallabasass Arokianathan came into occupation of the suit property by getting prior permission from the plaintiff's mother in or about the year 1966 and lived in the hut with his family, but the hut belonged to the plaintiff's mother. The plaintiff's mother was also paying the house tax for the suit property. The defendant's father was only a lessee in the suit property. The hut was repaired by the defendant's father with a prior permission of the plaintiff's mother. At the time, when the defendant's father was put in possession of the suit property, the plaintiff's mother imposed a condition that he should vacate and surrender vacant possession of the suit property as and when required by the plaintiff's mother. The hut in the suit property fell down in the year 1986 due to heavy rain. Later the defendant and his father constructed a thatched house with the permission of the plaintiff's mother. At the time of new assessment of the houses for tax purpose by Karaikal Municipality, the defendant made a representation that he only constructed the hut and therefore, he influenced the municipal people and got his name being entered in the tax register. As the land patta stood in the name of the plaintiff's mother and as her old hut has completely fallen down, she did not insist for change of the defendant's name in the house tax register. As far as the suit property is concerned, it is the absolute property of the plaintiff's mother and no one can have a better title than that of the plaintiff's mother. Inspite of several demands were made by the plaintiff to the defendant for vacating and surrendering vacant possession of the suit property, the defendant has not vacated the suit property, but wanted time to vacate and surrender vacant possession to find out a new accommodation. In July, 1993, the defendant refused to vacate the suit property and hand over possession of the suit property to the plaintiff. Therefore, on 20. 07. 1993, the plaintiff caused the suit notice to the defendant terminating the tenancy and asked him to surrender vacant possession of the suit property on 1. 8. 1993. The defendant in his reply dated 11. 8. 1993 has denied the title of the plaintiff as well as her mother's in respect of the plaint schedule property. The suit property is the self-acquired property of the plaintiff's mother and she has donated the same in favour of the plaintiff. The defendant has claimed in his reply notice that he had constructed the house worth Rs. 1 lakh, but it was only a thatched hut worth less than Rs. 10,000/ -. Hence, the suit for declaration of title and for recovery of possession.

(3.) THE defendant in his written statement would contend that the plaintiff is not the absolute owner of the suit property nor her mother. Nor her alleged vendor of the suit property viz. Durairaj S/o. David of Trichy has owned the suit property. The alleged sale deed dated 29. 05. 1962 does not create any transfer of interest in favour of the plaintiff's mother. The plaintiff is not entitled to claim any right in respect of the suit property through her mother or through her vendor. The settlement effected in favour of the plaintiff by his mother is not a valid settlement because the settlor herself had no right or title in respect of the suit property to convey the same in favour of the plaintiff. At the relevant point of time, the plaintiff's mother was suffering from paralytic attack in both her limbs. She has no mental capacity to decide to whom the property shall go. The plaintiff has to prove that the plaintiff's mother had sound deposing state of mind at the time when she executed the deed of settlement. Till 1980, patta was not changed for the suit property. Till 1980, the suit property was treated as Poramboku land. Only on production of valid and acceptable document in 1980, the pattas were given to the properties in Karaikal town. While the plaintiff was in possession of the property atleast from 1950, any change of patta without any enquiry or notice to this defendant or his father who are in possession of the property for more than 40 years and without basing on any document, the claim of the plaintiff is of no use for deciding the title and the revenue record as such without notice to the defendant has to be ignored for deciding the declaration of title. At no point of time the house on the suit property was assessed in the name of the plaintiff. It was assessed in the name of the defendant's father. The defendant's father was in occupation of the property from 1950 onwards and in his own volition had exercised all the rights of ownership. Till 1980, the suit property was considered as a poramboke land and no tax was collected from the said land. The entire house worth Rs. 1,00,000/- was constructed by the defendant's father and this defendant. No mutation was effected as alleged in the plaint in favour of the plaintiff. For the notice received from the plaintiff, the defendant has sent a suitable reply. The property was originally held by one Vallabadass Arokianathan and on his death, all his legal heirs have to be impleaded, then only the suit will be maintainable. The gift deed executed by the plaintiff's mother in favour of the plaintiff itself is not valid. The Court fee paid on the plaint is not correct. There is no valid cause of action for the plaintiff to file the suit. As per the municipality records, the suit property belongs to one Paul Pecroni. The suit is bad for non-joinder of necessary parties. Hence, the suit is liable to be dismissed with costs.