BHIMANGOUDA Vs. SANGAPPA IRAPPA PATIL

JUDGEMENT

(1.) These are two connected second appeals directed against the judgment and decrees of the District Judge. Bijapur dated 23rd December 1954 in Civil appeal Nos. 204 of 1953 and 156 of 1953 disallowing the appeals and confirming the judgment and decrees dated 6-4-1953 of the Civil Judge, Junior Division, Muddebihal in Original Suit Nos. 323 of 1950 and 147 of 1950 respectively on the file of that Court.

(2.) The plaintiff in the original suits is the appellant before us in both the second appeals. The facts material for the disposal of these second appeals may be briefly stated as follows: Bhimangouda alias Bhimshappa Patil filed a suit bearing No. O. S. 190 of 1947 in the Court of the Civil Judge, Junior Division, Muddebihal against the first defendant Sangappa Irappa Patil and his genitive father Gadigeppa for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act claiming himself to be the adoptive son of Bhimshappa Patil. He alleged that his adoptive mother Ningawa alienated the suit properties on 28-1-1934 in favour of the first defendant Sangappa Irappa Patil by executing a sale deed in his favour. But the transaction evidenced by the sale deed was in the nature of a mortgage though it was purported to be a sale. As an alternative relief he claimed than even if the transaction is regarded to be a sale, the alienation being without legal necessity it was not binding on him. It appears from the record that he abandoned his alternative claim in that suit i.e., to set aside the transaction on the ground that it was not for legal necessity and consequently the issues which were framed with regard to this allegation were struck off by the Court. Subsequently he made an application to the Court for withdrawal of his suit. Eventually on 23-3-1950 the Court allowed his application and passed an order which runs as follows:

(3.) In Original suit No. 147 of 1950 the plaintiff alleged that on 4-1-1943 he was adopted by the 4th defendant Ningawa as a son to her and deceased husband Bhimangouda Patil under the registered Adoption Deed dated 5-1-1943. After the death of Bhimangouda Patil the first defendant induced the fourth defendant Ningawa (his adoptive mother) by promising to pay off the debts due by Bhimbandouda Patil, the deceased and that he (first defendant) would reconvey the property to her on repayment of the principal and interest. On his representation, the 4th defendant executed an ostensible sale deed dated 21-8-1943 in his favour. It was contended by the plaintiff that the sale was norimal and the transaction was in fact a mortgage transaction. Therefore, he prayed for relief of accounts under S. 15-D of the Dekkhan Agriculturists Relief Act. Defendants Nos. 1 and 2 in their written statements denied the plaintiff's adoption and contended that the transaction evidenced by the sale deed dated 21-8-1943 was an absolute sale and not a mortgage. They also denied that there was an oral agreement to reconvey the properties to the fourth defendant. They further contended that the plaintiff's suit was not maintainable because it was barred by res judicata and under the provisions of O. 23, R. 1 of the Civil procedure Code. Defendants Nos. 3 and 4 did not contest the suit and an ex parte order was passed against them. At the hearing a number of issue were framed by the trial court and on consideration of the material on record the trial Court held that the plaintiff was validly adopted by defendant No. 4 as a son to her deceased husband Bhimangouda Patil, that the plaintiff and defendant No. 4 were agriculturists, that the plaintiff was not a debtor under the Bombay Agriculturists, that the plaintiff was not a Debtor under the Bombay Articultural Debtors Relief Act, the consideration for the transaction was Rs. 1,400/- and that defendants Nos. 1 and 2 have spent Rs. 800/- for the improvement of the land bearing survey No. 1. It however held that as the transaction was a sale transaction out and out and not a mortgage, the plaintiff is not entitled to any relief to accounts under S. 15-D of the Dekkhan Agriculturists Relief Act. It therefore dismissed the plaintiff's suit. On appeal by the plaintiff to the District Court, Bijapur in Civil Appeal No. 156 of 1953, the learned District Judge confirmed the decision of the trial Court. Aggrieved by the judgment and decree of the District Judge, the plaintiff has preferred second appeal No. B 123 of 1956 before us.