KHAJA BI Vs. MOHAMMAD HUSSAIN

JUDGEMENT

(1.) This second appeal was originally filed in the erstwhile High Court of Hyderabad and was transferred to this Court under the provisions of the States Re-organisation Act. The details of the earlier proceedings in this second appeal are fully set out in the order dated 24th June 1963 of the Bench of five Judges which after hearing the arguments on the preliminary point relating to the reference to a Full Bench by the Division Bench of the erstwhile High Court of Hyderabad which heard the appeal in the first instance, held that the same should be heard and disposed of by a Full Bench of three Judges, it is unnecessary to repeat those details. It is enough to take note of two points. The suit, out of which this appeal arises, having been instituted long before the Indian Civil Procedure Code (Central Act V of 1903) was extended to the erstwhile State of Hyderabad, the scope of the Second Appeal is as determined by the relevant provisions of the Civil Procedure code of that State. According to those provisions, the parties are entitled to raise and the High Court empowered to examine and interfere with both questions of fact and questions of law. Secondly, the Division Bench which made the reference to a Full Bench has in accordance with the provisions of the Hyderabad High Court Act referred to the Full Bench not specified questions of law but the entire case. We have therefore heard arguments both on the questions of fact and on the questions of law raised in this appeal.

(2.) The appellants are the surviving legal representatives of the original first defendant Ladle Saheb, The respondent Mohamad Hussain was the plaintiff. The second defendant was one Shivappa. He died during the pendency of the suit itself. But, it appears that his legal representatives were not brought on record. We shall refer to the parties by their names.

(3.) The facts as alleged by the plaintiff in his plaint and as found by the trial Court and the lower appellate Court are briefly the following:The land comprised in survey No. 495 of Hungunata village in Gulbarga District called by the name Gopal Kai Khait belonged to the deceased second defendant Shivappa On 29-3-1938, he entered into an agreement with Mohamad Hussain to sell the land to him for Rs. 2,601/- and received Rs. 25/- as advance. Exs. I and II are respectively the agreement and the receipt for payment of advance On 124-1936 Shivappa entered into an agreement will the deceased first defendant Ladle Saheb for the sale of the same land to the latter for Rs. 2,0007- and received an advance of Rs. 400/-. Ex. VIII is that agreement. On 21-6-1936 Ladle Saheb instituted a suit against Shivappa for specific performance of the agreement Ex. VIll. The property had been mortgaged with possession by Shivappa on 24-8-1931 to one Sharanappa under Ex. VI. The period of the mortgage was 12 years. On 11-7-1936 Ladle Sahet purchased the mortgagee's right and got into possession. On 20-8-1936 Mohamad Hussain made an application Ex. XI in Ladle Saheb's suit for specific performance to gat himself impleaded as a defendant therein, alleging that he had purchased the land in dispute In the case In terms of the agreement Ex. I. That application was opposed by Ladle Saheb and ultimately dismissed by the Court on 2-9-1936. The order is marked Ex. 111. Thereafter on 1-4-1937, Shivappa executed a sale deed Ex. IIl in favour of Mohamad Hussain purporting to be pursuant to the agreement Ex. I. Ladle Saheb's suit for specific performance was decreed on 4-4-1937. Ex. XIII is the decree and Ex. XVI the Judgment therein. In the meanwhile, Mohamad Hussain filed a suit against Shivappa to get the patta of the land transferred to him pursuant to the purchase by him under Ex. 111. It was decreed in his favour by consent on 22-4-1937. Shivappa filed an appeal against the decree for specific performance passed against him in Ladle Saheb's suit on 2-5-1938, That appeal was dismissed on 164-1952.