BAGYAM Vs. COMMISSIONER CITY MUNICIPAL CORPORATION

JUDGEMENT

(1.) (Prayer: These second appeals are filed against the judgments and decrees dated 29.11.2008 passed by the District Judge, Coimbatore, in A.S.Nos.118, 119 and 117 of 2007, partly reversing the judgments and decrees dated 5.3.2007 passed by the Subordinate Judge, Coimbatore, in O.S.Nos.522, 530 and 526 of 2005.) Common judgment: These second appeals are focussed by the plaintiffs, animadverting upon the judgments and decrees dated 29.11.2008 passed by the District Judge, Coimbatore, in A.S.Nos.118, 119 and 117 of 2007, partly reversing the judgments and decrees dated 5.3.2007 passed by the Subordinate Judge, Coimbatore, in O.S.Nos.522, 530 and 526 of 2005. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the trial Court.

(2.) BROADLY but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these second appeals, would run thus: (a) The respective appellants in the second appeals were plaintiffs in the three suits separately filed by them before the Sub Court, Coimbatore. The gist and kernal, the sum and substance of the averments in the three plaints are almost similar, which would run thus:- (i) The properties described in the schedule of the plaints belong to the Sowripalayam Rural Co-operative Housing Society(hereinafter referred to as the 'Housing Society' for short), which sold those properties in favour of the plaintiffs and they started enjoying the same exclusively for more than 18 years. The suit properties in those suits, including the one other adjoining area totally measuring an extent of 26 cents were earmarked for construction of a nursery school in the larger lay out plan approved by the planning authority, consequent upon the said Housing Society having submitted a plan for developing a large area for house sites. However, subsequently, the said Housing Society divided a portion of that area earmarked for nursery school into three moieties (the suit properties) and sold them in favour of each of the three plaintiffs herein. (ii) D2-the G.R.G.Nagar Welfare Society even though had no power to alienate or transfer the suit properties, involved in this litigation, simply executed a gift deed-Ex.A4 dated 11.2.2005 in favour of defendant No.1 as though the latter could put to public use. Hence, three suits were filed, incorporating in each of the suits the following prayers. 1.To declare that the plaintiff is the absolute owner of the suit property; 2. to declare that the Gift Settlement Deed dated 11.2.2005 and registered as document No.351 of 2005 is invalid, illegal, unenforceable and void abinitio;

(3.) TO direct the defendants TO pay cost of the suit." (b) Per contra, remonstrating and refuting the allegations/averments in the plaints, D1 and D2 filed separate written statements in each of the suits TO the effect that the Sowripalayam Rural Co-operative Housing Society had no right TO alienate the suit properties, which were earmarked for construction of a nursery school for the welfare of the said newly emerged colony, as per the approved lay out issued in favour of the said Housing Society. (c) The trial Court framed the relevant issues. During trial, in O.S.No.522 of 2005, on the plaintiff's side one Radhakrishnan was examined as P.W.1 and Exs.A1 TO A25 were marked. On the defendants' side D.W.1 TO D.W.4 were examined and Exs.B1 TO B17 were marked. Ex.C1 TO C3 were marked as Court documents. (d) In O.S.No.530 of 2005, on the plaintiff's side one Shanmugapriya was examined as P.W.1 and Exs.A1 TO A23 were marked. On the defendants' side D.W.1 TO D.W.4 were examined and Exs.B1 TO B17 were marked. Ex.C1 TO C3 were marked as Court documents. (d) In O.S.No.526 of 2005, the plaintiff examined herself as P.W.1 and Exs.A1 TO A25 were marked. On the defendants' side D.W.1 TO D.W.5 were examined and Exs.B1 TO B.19 were marked. (e) Ultimately, the trial Court decreed the original suits in TOTO. (f) Being aggrieved by and dissatisfied with the judgments of the trial Court, three appeals in A.S.Nos.118, 119 and 117 of 2007 were filed before the District Judge, CoimbaTOre, by D1-the Commissioner, CoimbaTOre City Municipal Corporation, CoimbaTOre, and the appellate Court partly allowed the appeals by setting aside the Gift Deed executed by D2 in favour of D1, but rejecting the other prayers for declaration of plaintiffs' title over the suit properties, for injunction and for declaration of the resolution No.15 passed by the first defendant on 28.9.2005 relating TO the suit property. 3. Animadverting upon the appellate Courts judgments, the plaintiffs filed the second appeals on various grounds, the gist and kernal, the warp and woof of them would run thus: The first appellate Court failed TO take inTO consideration the fact that despite the suit properties having been earmarked for nursery school, the Sowripalayam Rural Co-operative Housing Society got itself divested of its ownership and the said Society had re-thinking over it and passed resolution TO alienate the suit properties in favour of the plaintiffs, who acquired valid title over the same under the sale deed-Ex.A1 dated 22.5.1987. The first appellate Court also failed TO take inTO account Ex.A3 dated 17.8.1987 and Ex.B1 dated 24.5.1985 (in O.S.Nos.522 & 530 of 2005); Ex.B6 (in O.S.No.526 of 2005)-the circulars issued by the authorities concerned, as those circulars enabled the said Sowripalayam Rural Co-operative Housing Society TO alienate those areas earlier earmarked for nursery school. The first appellate Court also failed TO take inTO consideration that the plaintiffs have always been ready and willing TO put the areas purchased by them for raising nursery school for mentally retarded, creche and nursery school, which are in pari materia with the purpose for which those areas were earmarked in the approved plan. Accordingly, the appellants suggested the following substantial questions of law: