KHAWJABI Vs. MOHAMMAD HUSSAIN

JUDGEMENT

(1.) THIS second appeal was originally filed in the erstwhile High Court of Hyderabad and was transferred to this Court tinder 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 1953 of the Bench of five Judges which after hearing the arguments on the preliminary point relating to the reference to 3 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 1908) 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 an the questions of fact ant! 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 present suit, out of which this second Appeal arises, was filed by Mohamad Hussain on 3 -8 -1937. In the first instance, the suit appears to have been filed before the Court of the Munisiff praying merely for a declaration that the decree for specific performance obtained by Ladle Saheb was void and ineffective against him and the right of ownership acquired by him by the purchase under Ex. III Later, however because Ladle Saheb had obtained possession by acquiring mortgagee Sharanappa's interest as stated above, the prayer was amended by asking for possession also. The suit was disposed of on 26 -11 -1951, the Court granting him a decree for possession against Ladle Saheb and dismissing it in other respects. Ladle Saheb appealed against the decree for possession made against him. Mohamad Hussain cross -objected against the refusal of the declaration sought by him. Both the appeal and the cross -objections were dismissed by the first appellate Court on 16 -4 -1952. Hence the second appeal by the legal representatives of the deceased Ladle Saheb.