MADAMAIICHI RANIAPPA Vs. MUTHALURU BOJJAPPA

JUDGEMENT

(1.) This appeal by special leave is directed against the decision of a learned single Judge of the High Court of Andhra Pradesh in a second appeal preferred before it by the respondent. There is no doubt that under Art. 133(3) of the Constitution no appeal lies to this Court from the judgment decree or final order of one Judge of a High Court it has been the consistent practice of this Court not to encourage applications for special leave against the decisions of the High Court rendered in second appeals; but in cases where the petitioners for special leave against the second appellate judgments delivered by a single judge of the High Court are able to satisfy this Court that in allowing a second appeal the High Court has interfered with questions of fact and has thus contravened the limits prescribed by S. 100 of the Code of Civil Procedure it is not easy to reject their claim for special leave. As early as 1890 in the case of Mst. Durga Chowdhrain vs. Jawahar Singh 17 Ind App 122 (PC) the Privy Council emphatically declared that under S. 584 of the earlier Code which corresponds to S.100 of the present Code there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be; and they added a note of warning that no Court in India has power to add to, or enlarge the grounds specified in S. 100. The appellants contention in the present appeal is that this warning has been patently disregarded and in allowing the respondent's appeal against them, the second appellate Court has interfered with concurrent findings of fact. That is the sole ground on which leave has been granted to the appellant and on which we propose to allow this appeal.

(2.) The facts leading to the present appeal are not many and they lie within a very narrow compass. Survey No. 440-B situated in Rakatla village originally belonged to one Boya Krishnappa and it measured 166 acres. In the suit filed by the appellants in the Court of Subordinate Judge, Anantapur in 1951 (O.S. No. 72 of 1953), the appellants alleged that 40 acres out of the said land had been purchased by their father, Chinna Venkataramanappa from Boya Krishnappa about 35, years before the date of the suit for consideration. After the sale took place, the appellants' father obtained possession of the property and continued in possession during his life time. On his death, the appellant's mother acting as their guardian remained in possession and management of the said property until 1947. The appellants family had been paying the assessment for the land all the time and had been in its possession in an open and peaceful manner until 1947.

(3.) It appears that the respondent had obtained a mortgage decree in O.S. No. 94 of 1940 against Boya Krishnappa in respect of the entire Survey No. 440-B and in pursuance of the said mortgage decree, brought the mortgaged property to sale. At the Court sale, the respondent purchased the property himself in about 1943, and thereafter he began to obstruct the possession of the appellants. In 1947, the respondent managed to enter upon the land in suit unlawfully and that gave rise to the present suit. The cause of action for the suit is thus the wrongful dispossession of the appellants by the respondent by about 1947.The appellants pleaded that though Boya Krishnappa may have included the suit property in the mortgage deed executed by him in favour of the respondent on the 31st July, 1929, the said mortgage did not affect the appellants' title to the property which had already been purchased by their father from the said Krishnappa, and so, the decree passed in the mortgage suit, and the auction sale held thereunder did not bind them. It is no these allegations that the appellants claimed a declaration of their title to the suit property and asked for a decree for possession as well as mesne profits, past and future.