R. Karuppiah, J.@mdashThe appellant/plaintiff in the Suit filed this Appeal Suit, as against the Judgment and Decree in O.S. No. 236 of 2004, dated 12.10.2007 on the file of Additional District Court (Fast Track Court-I), Thanjavur. The appellant/plaintiff filed a suit for partition of her half share in the suit property. Briefly the case of the appellant/plaintiff stated in the plaint is that the marriage between the plaintiff and defendant took place on 23.02.1994 and one female child was born, but subsequently died. The suit property (vacant site) was purchased by the defendant on 05.02.1992 by way of a registered sale deed and had constructed partly in the ground floor by availing loan. After the marriage, completed the ground floor and also constructed first floor with the contribution of the plaintiff i.e., the plaintiff has directed to pay the instalments of the loan availed by the defendant. The entire earnings of the plaintiff have been spent for development of the suit property. Since the defendant developed adulterous life with one Kowsalya, the plaintiff preferred a complaint before the All Women Police Station and a case has been registered in Crime No. 1 of 2004. Since the defendant ignored the plaintiff, she is residing along with her mother in the suit property. The defendant has taking steps to sell the suit property and acting against the interest of the family. Therefore, the plaintiff is not willing to remain in joint possession of the suit property and demanded portion of her share in the suit property from the defendant. But the defendant has not agreed to give share in the suit property. Without prejudice to the right of partition, the plaintiff is entitled to the right of residence under the provisions of Hindu Adoptions and Maintenance Act, 1956. Since the defendant is trying to dispose the suit property with ulterior motive, the plaintiff filed the suit for partition of her half share in the suit property.
2. The respondent/defendant filed a detailed written statement in which it is denied various averments in the plaint and stated that the defendant was working in Postal Department and the plaintiff was working in Canara Bank. The defendant, by availing loan from Canara Bank, had purchased the suit property from one Sheik Abbas, by way of sale deed, dated 05.02.1992 and the construction was completed in the year 1993 and the Grahapravesh was performed on 22.08.1993 and he has been residing in that house even before his marriage with the plaintiff. On 07.09.1999, the defendant availed loan of Rs. 1,50,000/- from the same Bank for construction of first floor and in the year 2001, the defendant availed another loan of Rs. 50,000/- from the same Bank for repairing work or the house. The defendant totally availed a sum of Rs. 3,50,000/- as loan from the Bank and the defendant has been repaying a sum of Rs. 2,750/- per month from his salary. Therefore it is false to state that after marriage, the house building was completed and first floor was constructed with the contribution of the plaintiff. The plaintiff has never given any amount to the defendant for construction or for repaying the loan amount. Only the defendant availed the loan for construction of the house and he alone repaying the loan from his salary. The other averments viz., the defendant developed adulterous life with one Kowsalya is false but only due to the plaintiff''s conduct and character, the defendant not able to lead his marital life with the plaintiff. Further, due to employment both the plaintiff and defendant worked in different places upto 2004. The defendant tried his level best to bring her back to the matrimonial home but it was in vain and hence, the defendant filed a petition in H.M.O.P. No. 126 of 2004, to dissolve marriage and it is pending. The plaintiff started to live along with her mother and sister at Trichy without informing to the defendant. The plaintiff wanted to get the suit property from the defendant but the defendant was not willing to do so and hence, the plaintiff preferred a false complaint against the defendant in Crime No. 1 of 2004. The plaintiff, with the help of her brother, tried to dispossess the defendant from the suit property. Hence, the defendant filed a police complaint against the plaintiff. Only after the above said complaint, the plaintiff has filed this Suit with false allegations. The plaintiff is not entitled to any partition and also not entitled to any right of residence. The suit property is absolute property of the defendant and therefore, prayed for dismissal of the above said suit with exemplary costs.
3. The trial Court has framed the following five issues for consideration:-
1. Whether the plaintiff is entitled to have half share in the suit schedule house property and to that effect a preliminary decree can be passed in her favour?
2. Whether the plaintiff is entitled to have the relief for permanent injunction against her husband/defendant with reference to suit schedule property?
3. Whether construction was completed by the defendant in the house site even before his marriage with plaintiff and performed Grahapravesh as on 22.08.1997?
4. Whether plaintiff contributed her earning money towards discharge of availed loan of defendant for construction of suit house?
5. To what relief plaintiff is entitled?
4. On the side of the plaintiff, two witnesses were examined as P.Ws. 1 and 2 and marked 16 documents as Exs. A1 to A16. On the side of the defendant, two witnesses were examined as D.Ws. 1 and 2 and marked 29 documents as Exs. B1 to B29.
5. Considering the above said oral and documentary evidence adduced on either side, the trial Court has come to a conclusion that the plaintiff has not contributed any amount for the construction of the house and hence, the plaintiff is not entitled to half share in the suit property. Further, the trial Court has observed that in view of H.M.O.P. No. 126 of 2004 filed by the defendant is pending before the Additional Sub Court, Thanjavur, the plaintiff is entitled to reside in the suit property and finally the trial Court has dismissed the suit for partition filed by the plaintiff.
6. Aggrieved over the above said dismissal of the suit, the appellant/plaintiff has filed this Appeal Suit.
7. The points for consideration in this Appeal Suit are as follows:-
1. Whether the plaintiff has contributed any amount for construction of the building in the suit property?
2. Whether the plaintiff is entitled to half share in the suit property, as pleaded in the plaint?
8. The appellant/plaintiff filed a suit for partition of her half share in the entire suit property situated in Nanjikkottai Vattam, Survey No. 246 in Rahman Nagar, Plot No. 211 1271, Postal Colony, 4th Street, Thanjavur, a terraced house with all amenities. Boundaries stated as North of Plot No. 224; South of East West Road; West of Plot No. 212 and East of Plot No. 210, measuring East to West on both sides 60 feet, North to South on both sides 80 feet, totaling 4800 Sq. ft. Therefore, a perusal of the plaint reveal that the plaintiff has claimed half share in the entire suit property including site and building thereon.
9. Admittedly, the marriage between the plaintiff and defendant took place only on 23.02.1994. But the defendant had purchased the site under Ex. A1, Registered sale deed, dated 05.02.1992. On the date of purchase, the marriage has not been took place between the plaintiff and defendant. The plaintiff also has not stated that she contributed any amount to purchase the above said property viz., site. The learned counsel appearing for the appellant also admitted that the above said site purchased under Ex. A1 is only belonged to the defendant and the plaintiff has not contributed any amount for the above said purchase.
10. The main contention of the appellant/plaintiff is that at the time of marriage, the building in ground floor was not completed and then the first floor was put up with the contribution of the plaintiff and also the plaintiff has directed to pay the instalments of loan availed by the defendant for construction and therefore, the plaintiff is entitled to half share in the suit property.
11. The learned counsel appearing for the respondent/defendant would submit that admittedly the suit property, originally a vacant site, and it was purchased by the respondent/defendant. The appellant/plaintiff has not disputed the above said fact. The main contention of the appellant/plaintiff is that the appellant/plaintiff has contributed for completion of the ground floor and construction of the first floor and the appellant/plaintiff has paid directed to pay the instalments of the loan availed by the respondent/defendant. In the above said circumstances, the burden of proof lies only on the appellant/plaintiff to prove that the she has contributed any amount for construction and also has to prove that due to the above said contribution, she is entitled to half share in the above said building.
12. In the instant case, on the side of the appellant/plaintiff has marked Ex. A1, copy of sale deed, dated 05.02.1992 wherein the vacant site of the suit property, purchased by the defendant. From the above said document it is clearly proved that even prior to the marriage of the appellant/plaintiff, the vacant site was purchased by the respondent/defendant. Therefore, the appellant has no right in the above said vacant site, as rightly pointed out by the learned counsel for the respondent/defendant. The learned counsel appearing for the appellant/plaintiff also not disputed the above said contention of the respondent/defendant. But on the side of the appellant/plaintiff has filed a suit for partition of her half share in entire suit property, including the vacant site. Therefore, the appellant/plaintiff is not entitled to half share in the vacant site, as rightly pointed out by the learned counsel for the respondent.
13. With regard to super structure in the suit property, the case of the appellant/plaintiff is that at the time of marriage only, a portion of the ground floor has been completed and after marriage, completed the remaining construction and also constructed first floor. For that construction, she has also contributed her salary amount and therefore, the appellant is entitled to half share in the above said building.
14. The main contention of the respondent/defendant is that he is employed and working in Canara Bank and obtaining loans on various dates and purchased the above said property and also constructed the entire super structure in the suit property. The learned counsel pointed out that the respondent/defendant, after purchasing of vacant site on 05.02.1992, construction work was completed in the year 1993 by availing Bank loan and Grahapravesh was performed on 22.08.1993 and he has been residing in that house even prior to marriage with the plaintiff. It is further pointed out that on 07.09.1999, the respondent/defendant availed loan of Rs. 1,50,000/- and another loan of Rs. 50,000/- in the year 2001 for maintenance of that house and totally, the he has obtained the loan of Rs. 3,50,000/- and he has repaying the above said amount in monthly instalments of Rs. 2750/- from his salary and therefore, the contention of the appellant/plaintiff are absolutely false.
15. As rightly pointed out by the learned counsel for the respondent/defendant, the appellant/plaintiff has not produced any reliable documents to prove that she contributed any amount for construction of a portion of ground floor or first floor. The appellant/Plaintiff has also not filed any documents to prove that the she has paid any amount for the loan obtained by the respondent/defendant. On the side of the appellant/plaintiff has produced Exs. A2 to A7 notice issued by the respondent/defendant and reply notice of the appellant/plaintiff and acknowledgement copy of complaint, in which nowhere it is stated that the appellant/plaintiff has contributed amount for construction in the suit property and also not claimed any share in the suit property. Ex. A8, copy of complaint and Ex. A9 FIR were only shows that there was dispute between the husband and wife about the conduct of the husband. Ex. A10 copy of Family Card show that the appellant and respondent are husband and wife. Ex. A11, copy of communication from Income Tax Department reveal that PAN Card was issued to the appellant on 02.01.2001. Ex. A12 produced by the appellant is a copy of the letter from Canara Bank to the defendant, seeking certain clarification for loan application. Ex. A13 is the Railway Ticket; Ex. A14 is a letter addressed to the respondent from Sundara Vinayagar Gas Agency. Ex. A15 is the photos of plaintiff and defendant and their deceased child. Ex. A16 is the Circular issued by the Canara Bank regarding housing loan scheme. Therefore, on the side of the appellant/plaintiff not at all produced any piece of documentary evidence to prove that she contributed any amount for the construction of the ground floor or first floor or to prove that the she has paid any amount for the loan obtained by the respondent/defendant in the Bank. The learned counsel appearing for the appellant/plaintiff has also admitted that except oral testimony of P.Ws. 1 and 2, no other documentary evidence to prove the above said facts.
16. On the side of the appellant/plaintiff has admitted that both the appellant/plaintiff and the respondent/defendant have not lived in a same roof from 1992 to 2004. In the above said circumstances, except the oral testimony of P.W. 1, no other evidence to prove that she has contributed any amount for the construction of the above said super structure in the suit property. On the side of the appellant/plaintiff has examined P.W. 2, Branch Manager of Canara Bank. A perusal of the above said oral testimony reveal that he has deposed that the respondent/defendant has applied for loan for construction of the building. The above said witness also not deposed as the appellant/plaintiff has paid any instalments for the above said Bank loan. Therefore, the above said oral testimony is not at all any help to the appellant/plaintiff. Therefore, as rightly pointed out by the learned counsel for the respondent/defendant, the appellant/plaintiff has miserably failed to prove the contention that she contributed for construction of a portion of ground floor or first floor or also paid any instalments of Bank loan.
17. Per contra, on the side of the respondent/defendant has produced Exs. B1 and B2 marriage invitation and marriage photos. Since the marriage is not disputed, need not be discussed in detail about the above said documents. The respondent/defendant has produced Ex. B3, a same copy of sale deed marked by the appellant/plaintiff as Ex. A1. It is also not in dispute. The respondent has produced Ex. B4 House Tax receipts, Ex. B5 Patta; Ex. B6 Certificate from Canara Bank; Ex. B7 Pass-Book; Exs. B8 to B10 copies of Estimate and work completion certificate; Ex. B11 Telephone Bills; Ex. B12 copy of Will; EX. B22 Salary Slip of plaintiff; EX. B23 copy of Gas Receipt; EX. B24 Gas connection receipt; EX. B25 Rent receipt; EX. B29 Supplementary House Advance Application. All the above said documents clearly proved that the suit property was purchased only by the respondent/defendant and he had constructed the above said building by obtaining loans from the Bank and the above said loan also discharged by the respondent/defendant. Therefore, the above said documents clearly proved that the appellant/plaintiff has no right in the above said suit property. With regard to other documents viz., Ex. B1, B2, B13 to 21; Ex. B26 and 27 are all relating to marriage disputes between the appellant and respondent and therefore, need not be discussed in detail. Further, on the side of the respondent/defendant, he himself deposed as D.W. 1 and also examined one Govindarajan as D.W. 2. Official of Canara Bank. A careful perusal of the above said oral evidence of D.Ws. 1 and 2 clearly show that the suit property was purchased only by the respondent/defendant and the super structure was constructed by the respondent by obtaining loan and he alone discharged the above said loan by paying monthly instalments of Rs. 2,150/-. Therefore, the respondent/defendant has adduced reliable oral and documentary evidence to prove that the suit vacant site was purchased by the defendant and constructed the super structure by obtaining loan and he alone discharged the above said loan. The trial Court has correctly discussed in detail and rejected the claim of the appellant/plaintiff and dismissed the suit.
18. From the above said discussion, it is clear that the appellant/plaintiff has miserably failed to prove the fact that the portion of the construction in the ground floor and construction of the first floor, only put up with the contribution of the appellant/plaintiff and also failed to prove that the appellant/Plaintiff discharged the loan availed by the respondent/defendant. Therefore, the appellant/Plaintiff is not entitled to any share in the suit property, as rightly held by the trial Court and answered the two points for consideration in favour of the respondent/defendant and as against the appellant/plaintiff. In the result, the Appeal Suit is dismissed with costs, confirming the Judgment and Decree, dated 12.10.2007 passed in O.S. No. 236 of 2004 by the Additional District Court (Fast Track Court-I), Thanjavur.
