LALITHA KARIAPPA RAI Vs. SANJEEVI

JUDGEMENT

(1.) THIS appeal is by the appellants in FDP. No. 5/90 arising out of O. S. No. 122/89 and also being aggrieved by the judgment and decree passed by the learned civil Judge Sr. Dn. , Puttur, in R. A. No. 79/ 91. The appellants had filed O. S. No. 122/ 89 before the Principal Munsiff Puttur, against the respondents to enforce charge on the B schedule property by way of sale of b schedule property and to recover a sum of Rs. 16,842/- as annunity for the period from 1982 to 1987 and for future interest and cost of the suit.

(2.) ACCORDING to the plaintiffs, partition deed dated 5-9-1949 was effected in the family of Seethu Hengsu, Subbakke, Kunhappa rai and Chennamma and B schedule properties along with other properties were allotted to the share of Kunhappa Rai who settled the same in favour of the first defendant and on subsequent partition, property now vests with the defendants. As per the 1949 partition, allottees of B schedule properties were liable to pay annuity of 20 muras of rice to the Branch of Seethu Hengsu mother-in-law of the plaintiff No. 1 payable on charge of B schedule properties on or before 12 of April every year. In the subsequent partition in the family of Seethu hengsu made on 18-7-1968 the above rights stood allotted to the share of Seethu Hengsu and as such, she was exclusively entitled to collect owelty on charge of B schedule plot. Sethu Hengsu left a Will behind her dated 5-2-1981 in favour of Kariappa Rai. the husband of the first plaintiff and thereafter, she died on 6-5-1984. In view of the Will executed by late Seethu Hengsu in favour of kariappa Rai, he was absolutely entitled to recover annuity from the allottees of B schedule property. On the death of Kariappa rai on 6-11-84, plaintiffs filed a suit for recovery of annunities and the suit was contested by the defendants. In the written statement, they have denied the claim of the plaintiffs. It is stated that the suit property vested in the Government and occupancy rights were conferred on the occupants and rights of the plaitiffs stood discharged and plaintiffs, had no more existing right on the charge of the claim over the property. Further, it is stated that in view of the land allotted to the defendants due to operation of law, plaintiffs lost their rights and also there was reduction to the extent of land allotted to the share of the defendants. Further, it is stated that suit in O. S. No. 18/1981 filed before the date of grant of occupancy rights, plaintiffs were not entitled to claim on the basis of the decree passed in O. S. No. 18/1981. Further contending that suit is barred by limitation, it was resisted. Based on the pleadings as many as 15 issues were raised. After the evidence was let in and after hearing the parties, the trial Court decreed the suit with costs and thereby directed the defendants to pay a sum of Rs. 16,848/- with interest of Rs. 8442/- from the suit till payment and created a charge on the B Schedule properties excluding lands on which occupancy rights were conferred as per Ex. P. 11. Being aggrieved by the same, appeal was preferred. After the preliminary decree was passed by the Munsiff Puttur, on 16-10-1989, the FDP proceedings were initiated in FDP. No. 5/90. The FDP proceedings were filed by the plaintiffs. In FDP No. 68/86 arising out of O. S. No. 18/1981 suit property was sold in the Court auction, wherein, one balakrishna Rai purchased the suit property on 30-3-1988. Later said Balakrishna rai got himself impleaded in FDP No. 5/90 which were filed by the plaintiffs, as 9th respondent. Respondents 1 to 7 in FDP. No. 5/90 remained ex parte and respondent No. 6 however was dead. 9th respondent who was the auction-purchaser contested the fdp proceedings. According to him, he was not aware of O. S. No. 122/89 filed and he was not a party to it and was not aware of the preliminary decree drawn therein. He stated that before the said suit was filed, he had purchased the schedule properties in court auction on 30-3-1988 for a sum of rs. 30,000/- and the same was confirmed on 1-7-1988. Although the appellants were fully aware of the facts, they suppressed the same and filed a suit in O. S. No. 122/89 against the respondents 1 to 8. Out of the aforesaid properties, land measuring 2 acres 90 cents went to the tenants. Respondent balakrishna Rai further contended that he was in possession and enjoyment of the same to the extent of 8 acres 81 cents and also that petition is bad for non-joinder of tenants and accordingly sought for dismissal. After enquiry in the fdp proceedings, the trial court dismissed the petition filed by the plaintiffs. Regular appeal in 79/ 91 was referred before civil (sic) who has dis-missed the appeal. Being aggrieved by the same, this appeal has been filed raising several substantial questions of law.

(3.) AT the time of admission, on 30-1-2003, one of the substantial question of law raised was "whether the respondent is a bona fide purchaser for value without notice in a Court auction and the charge created on the property is binding on him?"