MALLANGOWDA Vs. GAVISIDDANGOWDA AND

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Additional District Judge, Koppal, Rai-chur District passed in Appeal No. 4/4 of 1358 Fasli confirming the judgment and decree passed by the Munsiff, Koppal, in O. S. No. 122/1 of 1856F. Even though this is an appeal against the concurrent findings of both the Courts below, points of law have been raised in this appeal which require consideration. According to the Civil Procedure Code of Hyderabad, greater latitude is given to the appellants in second appeal under Section 100 of the Code of Civil Procedure (Section 602 of the Hyderabad Civil Procedure Code) than it is under the Civil Procedure Code as applicable throughout India. As this suit was filed long prior to the coming into force of the latter, opportunity is given to the parties to argue both on facts as well as on law.

(2.) The facts of the case arc briefly as follows:

(3.) Plaintiff Gavisiddanna Gowda who is the respondent in the first appellate Court as well as before [his Court, filed a suit before the Munsiff's Court, Koppal, Raichur District for specific performance of a sale entered into by defendants 1 to 5 (appellants 1 to 5) in favour of the plaintiff. As the property was mortgaged with possession to the sixth defendant Venkavva, plaintiff prayed for possession of the suit property and for redemption of the mortgage in favour of the said Venkawa, the sixth defendant. The land in question is survey No. 740 -- 8 acres 4 guntas in extent called Shemi hola situated in the village Tadkal, Velburga Taluk. This land was mortgaged by defendants 1 to 5 in favour of the 6th defendant as far back as 26th Mehr 1347F for a sum of Rs. 425/-. Defendants 1 to 5 resisted the claim of the plaintiff; but the sixth defendant joined hands with the plaintiff. Defendant 5 Kotre Cowda was a minor at the time of the filing of the suit and hence he was represented by a Court guardian and the Court guardian has filed a separate defence contesting the claim of the plaintiff to the suit property. His contention is to the effect that 5th defendant's father Basavana Gowda did not owe any debts and hence the alleged sale is not binding on him. He further advanced the plea that his mother who has been a party to the sale had no right whatsoever to sell the property.