VENKATARAMANA DEVARU TRUST Vs. VANAJAKSHI AMMA

JUDGEMENT

(1.) The plaintiff who has been unsuccessful in both the Courts below is the appellant in this second appeal. It is a family deity Sri Venkataramana Devaru and is represented by its present trustee The suit was for recovery of land described in 'B' schedule annexed to the plaint on the grounds set out in the plaint which are briefly the following: Property described in 'A' schedule annexed to the plaint originally belonged to the deity under a trust or endowment. The previous manager or trustee had sold the same several years ago to the predecessor-in- interest of the first defendant. The present trustee filed O.S. No. 132 of 1944 on the file of the trial Court for declaration of invalidity of the said alienation and recovery of possession of the 'A' schedule property. The suit was decreed and the decree was ultimately confirmed on second appeal by the Madras High Court on 20th of March 1951. Actual recovery of possession in execution of the decree was secured only on the 28th of April 1959. In the meanwhile, i.e., on 8-6-1955, the first defendant obtained plaint 'B' schedule property under a darakhast grant made by the Government. For securing the grant the first defendant made it appear that she was the owner and occupier of the Verga land of the plaint 'A' schedule and pleaded its Kumki privilege as a ground for preference in her favour so far as the darakhast is concerned. Subsequently, in March 1961, the first defendant sold the land to the second defenant.

(2.) The case of the plaintiff was that 'B' schedule land was secured by the first defenndant on a darakhast by pleading Kumki privileges and that therefore it must be held that she acquired the same by making use of her position as the occupant of the Varga land. Further it is stated that the first defendant had been guilty of fraud by deliberately refraining from bringing to the notice of the Government or the Revenue Authorities dealing with darkhast grants the fact that she had already lost the property under a decree of a Civil Court and she had no longer any right to retain possession thereof.

(3.) Both the Courts below have rejected the theory of resulting trust or constructive trust sought to be constructed by the plaintiff and the argument in second appeal is that both of them have committed an error in rejecting the said argument.