Meganathan vs Vijayakumari and The Commissioner, Salem City Municipal Corporation

G. Rajasuria, J.—This second appeal is focussed by the plaintiff, inveighing the judgment and decree dated 16.10.2012 passed by the

learned II Additional Subordinate Judge, Salem in A.S. No. 77 of 2012 in reversing the judgment and decree dated 01.02.2012 passed by the

learned I Additional District Munsif, Salem in O.S. No. 1290 of 2008. The parties, for the sake of convenience, are referred to here under

according to their litigative status and ranking before the trial Court.

Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:

a) The plaintiff, who is the appellant in this second appeal, filed the suit seeking the following reliefs,

- to declare the order passed by the first defendant in favour of the second defendant vide now assessment No. 31068640 Division 25, Door No.

130, Leigh Bazaar, Salem as null and void and for costs.

(extracted as such)

citing the following property as the suit property:

VERNACULAR (TAMIL) PORTION DELETED

(extracted as such)

b) The warp and woof of the averments in the plaint would run thus:

The property described in the schedule of the plaint originally happened to be the ancestral property of the plaintiff and his brothers Natrayan and

Krishnamoorthi. The said Natarayan died on 05.02.2000. The plaintiff herein filed two suits in O.S. No. 167 of 1999 and O.S. No. 174 of 2004

before the learned Subordinate Judge, Salem and they were subsequently transferred to the Fast Track Court No. I Salem and renumbered as

O.S. Nos. 88 of 2005 and 89 of 2005. D2-Vijayakumari filed one other suit in O.S. No. 249 of 2003 for partition and separate possession

concerning various properties including the suit property; the said suit was transferred to Fast Track Court, Salem and was numbered as O.S. No.

202 of 2004; in that a joint memo was filed by some of the parties to that suit. The plaintiff has been in possession and enjoyment of the suit

property. There was no partition in respect of the suit properties and all other properties by metes and bounds. As such, the shares are in joint

possession. [The other details in the plaint, as of now, are not germane]. The judgment was pronounced on merits in respect of other parties in the

suit O.S. No. 202 of 2004 and as against which, three appeals, viz., A.S. Nos. 380 to 382 of 2008 are pending in the High Court. Meanwhile

sham and nominal sale deed dated 23.08.2007 was claimed to have been executed by one Thirupathi [who is the 11th defendant in the suit filed by

D2 defendant] and his son-Manikandan in favour of D2-Vijayakumari. Based on that D2 illegally got mutation of name in the property tax register

pertaining to the suit property in the Salem City Municipal Corporation. Such an act is hit by the principle of lis pendens. Without adhering to the

procedure for carrying out mutation in the property tax register, the officials high-handedly effected such mutation warranting quashment. Hence the

suit.

c) Per contra, in a bid to torpedo and pulverise the averments as found set out in the plaint-D1-Municipality filed the written statement, which

could tersely and briefly be set out thus:

There was no violation on the part of the officials of the Salem Municipality in effecting the mutation. After conducting due enquiry the name of D2

is included in the property tax register concerning the suit property. The officials concerned took into consideration the copy of the sale deed and

heirship certificate etc., and got satisfied about the ownership.

Accordingly, they prayed for the dismissal of the suit.

d) D2-Vijayakumari filed the written statement to the effect that she appropriately and appositely petitioned the municipality for getting effected

name transfer as she happened to be the absolute owner and adhering to the procedure alone, the name transfer was effected by D1 Municipality

concerning the suit property.

Accordingly, she prayed for the dismissal of the suit.

e) Issues were set down for trial, during which, the plaintiff examined himself as PW1 and marked Exs. A1 to A14. On the defendants'' side,

D.Ws. 1 to 3 were examined and Exs. B1 to B30 were marked.

f) Ultimately, the trial court decreed the suit; as against which, D2 filed the appeal. Whereupon, the first appellate court reversed the finding of the

trial court and dismissed the suit in toto.

g) Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds

and also suggesting the following substantial questions of law:

a] Whether the transfer of assessment of property tax is hold good when the issue regarding title is pending in appeal before this Hon''ble High

Court?

b] Whether the name of the owner of property while assessing the property tax can be changed based on the preliminary decree before finalizing

the final decree proceedings of the partition suit?

c] Whether the change of name of the owner of the property on assessment is correct, especially when the assessor has not following the due

procedure? (extracted as such)

Heard both sides.

At the outset itself, I would like to fumigate my mind with the recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs.

Ibrahim Uddin and Another,

A mere running of the eye over the aforesaid judgment would connote and denote, exemplify and demonstrate that the second appeal cannot be

entertained as a matter of course unless any substantial question of law is involved.

The learned counsel for the appellant/plaintiff would pyramid his argument, which could succinctly and precisely be set out thus:

(i) The trial court appropriately and appositely, legally and correctly appreciated and understood the case and decreed the suit.

(ii) When before the High Court as many as three appeal suits are pending relating to several properties, including the suit property, there is no

rhyme or reason on the part of D2 in getting mutation of name in the property tax register as though she became the owner of the suit property.

(iii) The temporary success before one forum in the litigative process would not amount to final adjudication.

(iv) Without understanding the purport of the legal principles, the official of the Municipality simply effected name transfer, warranting interference,

but the trial court appreciated the facts correctly and decreed the suit; but the first appellate court simply dismissed the suit with some perverse

findings.

Accordingly, he would pray for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree passed

by the trial court.

Whereas the learned counsel for D2 would put forth and set forth his arguments, the gist and kernel of the same would run thus:

(i) No suit would lie as against the Municipal Corporation officials relating to the mutation effected by them in the name of Vijayakumari and there

are in-built safe guards under the Coimbatore City Municipal Corporation Act, 1981 [Act XXV of 1981] as extended to Salem Municipal

Corporation, for redressal.

(ii) Simply because, the appeal suits are pending that it does not mean that D2 should not take steps to get her name mutated. However, the court

if decides finally as to who is the owner of the suit property, then that alone would prevail.

Accordingly, he would pray for the dismissal of the second appeal.

A mere running of the eye over the judgment of the first appellate court would reveal that it took into consideration the fact that the adjudication

in the pending three appeal suits before this court in A.S. Nos. 380 to 382 of 2008 would have the binding effect on the title of the parties

concerned and whomsoever is declared as the owner would be entitled to get his name mutated in the property tax register maintained by the

Salem Municipal Corporation. When such safe-guard is available for the plaintiff, whatever steps D2 had taken pendente lite would have no

binding effect and that would not in any way be detrimental to the right, if any, of the plaintiff. In fact, scarcely could it be stated that in the pending

appeal suits, A.S. Nos. 380 to 382 of 2008 itself, the plaintiff could not have sought for maintaining of status quo. This is nothing but an off-shoot

litigation. In this case, the title of the respective parties cannot be gone into as already High Court is seized of the matter in A.S. Nos. 380 to 382

of 2008.

A fortiori, the stand taken by the first appellate court warrants no interference. However, to disambiguate the ambiguity if any, I would like to

reiterate that the final adjudication in the said appeal suits pending before this court would have the binding effect on all parties including the Salem

Municipal Corporation and accordingly, the parties have to work out their remedies. With the above observation, this second appeal is disposed

of. No costs.