NARAYANASWAMY Vs. MUNIAMMA

JUDGEMENT

(1.) These two second appeals can be disposed of together as they arise out of one and the same suit, OS.47/60, on the file of the Second Munsiff, Bangalore City. These two appeals are by the two defendants in that suit. Both these appeals are directed against the judgment and decree in Regular Appeal No.81 of 1967 made by the learned Civil Judge, Bangalore Distsict, Bangalore.

(2.) The relevant facts, briefly stated, are' as follows: The suit of the respondents-plaintiffs is for redemption or in the alternative for specific performance of an agreement to reconvey executed by the appellant in RSA.993/67 on 17-2-1958 in favour of the plaintiffs. The lands concerned in the suit were conveyed to the first appellant herein, (first defendant) on 13-11-1958 for a consideration of Rs.600 on the specific understanding that it was only nominal and the entire transaction represented a mortgage. It is pursuant to that understanding that on 17-12-1958 the first defendant executed the agreement of reconveyance in question. The defence, inter alia, is that it was an out right sale and not a part of any mortgage agreed to between the parties. As regards the agreement to reconvey dt.17-12-1958, the plea, in substance, is that it was a forgery. The trial Court dismissed the suit. On appeal by the plaintiffs, the lower appellate Court decreed the suit in regard to the relief of specific performance of the agreement to reconvey Hence, these two appeals preferred by the two defendants.

(3.) Before adverting to the main contention, it is convenient to dispose of RSA.981/69 at this stage. This appeal is by the second defendant in the suit. His defence is that he is a bonafide purchaser for value without notice of the prior agreement to reconvey in favour of the plaintiffs. The finding in regard to this question has been held against him by the Court below. But, what is contended in this appeal is that he was a tenant even prior to the purchase from the first defendant, and therefore, his possession ought to be protected. In this view of the matter, the portion of the decree relative to delivery of actual physical possession ought to be modified or set aside as the case may be. This contention is clearly unacceptable. No plea has been raised specifically in regard to this question, much less an issue raised in regard to it. For the first time in evidence, such a case has been advanced on his behalf. I do not, therefore, feel persuaded to accept this contention. This appeal therefore, is liable to be dismissed.