RATHNAKAR Vs. H S MADHAVA RAO

JUDGEMENT

(1.) this appeal is by the plaintiff. The plaintiff filed o.s. No. 306/1971 for setting aside the order made in misc. No. 67/1968 on the file of the munsiff court, sagar, and for ordering the release of the property from the attachment made in o.s. No. 74/1967.

(2.) the plaintiff contended that he is the owner of the suit schedule property measuring about 1 acre 8 guntas out of 3 acres 6 guntas in sy. No. 1 with the boundaries mentioned therein, having purchased the same under a registered sale deed from the 5th defendant-k. N. Ramaiah. One sundara rao, father of present defendants-1 to 4, obtained a decree against the fifth defendant ramaiah in o.s. No. 74/1967 in the court of the learned munsiff at sagar and got the suit schedule properties attached conditionally before judgment in collusion with the second defendant. The said sundara rao in execution of the decree in o.s. No. 74/1967 brought the suit property to sale in execution 137/1968. The plaintiff having come to know about such intended sale of the properties in question, filed a claim petition before the learned munsiff, sagar, under order 21, Rule 58 of C.P.C. in misc. No. 67/1968 contending that the suit property was not liable for attachment. The said claim petition came to be dismissed on 12-2-1971. The plaintiff contended that the 5th defendant ramaiah had no subsisting interest on the date of attachment of the property and that it was he who was in possession of the same as owner and as such the suit property was not liable for attachment or sold in execution of the decree in o.s. No. 74/1967. On these pleadings the plaintiff prayed for setting aside the order dated 12-2-1971 passed in misc. No. 67/1968, dismissing the claim petition and to release the property from attachment.

(3.) defendant No. 1 in the written statement filed by him categori cally denied that the plaintiff was the owner of the suit property having purchased it from the 5th defendant under the alleged sale deed and that the plaintiff was in possession. According to him, the 5th defendant was the owner in possession of the suit property on the date of attachment and the property was rightly brought for sale in execution of decree passed in o.s. No. 74 of 1967. He also denied that the decree obtained in the said suit was collusive. He asserted that plaintiff had no right interest or possession over the suit property on the date of attachment that is on 16-3-1967. It was the 5th defendant who was in possession of it. According to the first defendant, the sale deed in favour of the plaintiff was only nominal and there was failure of consideration and that the document had been created only to knock off the property. Thus the plaintiff did not acquire any right or title over the said property much less possession under the sale deed. He further contended that the suit itself was not maintainable and as such it was liable to be dismissed. The 5th defendant k.n. ramaiah remained exparte.