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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Bagyam & Others
Versus
The Commissioner, Coimbatore City Municipal Corporation, Coimbatore & Another
S.A.Nos.63 of 2009, 67 & 68 of 2009 & M.P.No.1 of 2008
Decided on: 29-07-2009
(B)Transfer of Property Act, 1882 (4 of 1882)-Sec.8-Sale-Public purpose land-Title of purchaser- Welfare Society of the area cannot have any ownership right over the common land situated in the area.
The Welfare Society could only take care of the welfare of the residence of the colony, but they cannot have any ownership right over the immovable properties situated in the said colony. Para 9
(C)Transfer of Property Act, 1882 (4 of 1882)-Sec.8-Constitution of India-Art.300A-Right to Property-Sale-Public purpose land-Title of purchaser-The site reserved for certain usage continues to belong to its owner subject to the condition regarding its usage as per the condition imposed in the approved plan-Developer can transfer it to any one and confer title to the purchaser subject to the condition regarding its usage.
Simply because in the approved plan certain areas are earmarked for certain public purpose, that it does not mean that the developer had lost his right over it; a developer could alienate even such area reserved for public purpose, provided, the purchaser of it should use it for the very same purpose for which it was earmarked in the approved plan. In other words, the right to alienate by the developer is one guaranteed under Article 300-A of the Constitution of India and also under the Transfer of Property Act and such a restriction regarding use would run with the land. Para 14
(D)Practice and procedure-Locus standi-Stranger to property-Right to challenge title of the purchaser- Welfare Society of the area cannot have any ownership right over the common land situated in the area- It is a strangers to the land and had no right to pick a hole in the title of the plaintiff and contest it- Irregularity in the allotment of land can be looked into only by the Registrar of Co-operative authorities and a third parties cannot question it in civil Court.
Once the defendants are turned out to be the persons having no interest in the immovable property as of now, virtually, they cannot be heard to contend that the right acquired by the plaintiffs is defective on the ground that the vendor, namely, the Housing Society had not obtained proper permission from the Registrar. Tamil Nadu Co-operative Societies Act is a self-contained Act and the Registrar of Co-operative Societies, has been vested with enormous powers. If the Housing Society mismanages its affairs or illegally transfers its land, certainly the Registrar has got power to take action. I would like to incidentally point out that it is open to the defendants to set the law in motion by approaching the Registrar of Co-operative Societies. But in this suit, the defendants cannot pick holes in the title of the plaintiffs, who acquired title to the suit properties by virtue of those three sale deeds executed by the Housing Society, which, as per the Honourable Apex Court’s judgement, was the owner as on the date of effecting such sales. Para 22
These second appeals are focussed by the plaintiffs, animadverting upon the judgments and decrees dated 211. 2008 passed by the District Judge, Coimbatore, in A.S.Nos.118, 119 and 117 of 2007, partly reversing the judgments and decrees dated 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 12. 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 12. 2005 and registered as document No.351 of 2005 is invalid, illegal, unenforceable and void abinitio;
3. to declare that the resolution No.15 passed by the first defendant on 29. 2005 as invalid, unenforceable, arbitrary and illegal;
4. to grant permanent injunction, so as to restrain the defendants from in any way disturbing the plaintiffs peaceful possession and enjoyment of the suit schedule
property
5. 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 plaintiffs 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 plaintiffs 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 b
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