KESAVAN PADMANABHAN Vs. SANKU NARAYANAN

JUDGEMENT

(1.) This Second Appeal is by the plaintiff. The suit out of which it arises was brought by him in his right as court auction purchaser of Survey Plot 233/4 (Kormancherri purayidom) in Vayalar West Pakuthy, to compel defendant 1, a court auction purchaser of certain buildings standing on it, to remove them. Kormancherri purayidom as well as the buildings thereon belonged originally to a marumakkathayam Ezhava family of which defendants 2 to 5 were members. Under a partition arrangement evidenced by Ext. E (27-6-1091) the said purayidom which formed the homestead of the family and the buildings with which we are concerned here went to the share of the branch of defendants 2 to 5. On the date of the partition, the plaintiffs father was the karnavan of the family. At the partition he took his share separately and bequeathed the same to his wife and children. Under Ext. E, the remaining members of the family, that is, members other than the plaintiffs father and defendants 2 to 5, took their shares jointly. On the date of Ext. E the family was in rather involved circumstances and under it defendants 2 to 5 undertook to discharge the major portion of the common debts. The plaintiff was one of the creditors to whom the family owed money and the court sale of Kormancherri purayidom took place pursuant to the decree (O.S. No. 803 of 1094) he obtained for the recovery of the debt due to him. Several other creditors had also obtained decrees against defendants 2 to 5. One of such decrees, namely, that passed in O. S. No. 342 of 1093 was purchased by defendant 1. As assignee decree holder, defendant 1 brought to sale the buildings standing on Kormancherri purayidom and himself purchased them. Ext. C, a copy of the delivery receipt, showed that he obtained possession of the buildings on 19-12-1105. The plaintiffs purchase of the purayidom was subsequent, namely, on 16-6-1107. Ext. A, a copy of the delivery receipt, showed that possession of the same was made over to him on 21-7-1110. On the basis of the title and possession so obtained, well nigh eight years afterwards, to be exact, on 23-4-1118, the plaintiff brought the present suit to compel defendant 1 to remove the buildings purchased by him so that he (the plaintiff) might have vacant possession of the site. Defendants 2 to 5 were impleaded as defendants on the ground that they were in possession of the buildings under defendant 1.

(2.) The Trial Court in a well considered and well reasoned judgment, after analysing the entire evidence on record and after a careful consideration of the circumstances and probabilities of the case, unhesitatingly came to the conclusion that the defendants case was true, that the plaintiff was only a nominal purchaser, that notwithstanding the sale and the alleged delivery defendants 2 to 5, as real owners, remained in possession as before and accordingly dismissed the plaintiffs suit with costs. The appeal against the learned Munsiffs judgment and decree before the Alleppey District Court was equally unsuccessful. In an elaborate judgment the learned District Judge confirmed each and every finding of the court of the first instance and dismissed the appeal, confirming that courts judgment and decree. Hence this second appeal.

(3.) Mr. T.S. Krishnamoorthi Iyer appearing for the plaintiff appellant strenuously contended before us that the concurrent decisions of the two lower courts were wrong and that there was no reliable evidence to sustain the finding that the entire decree debt in O. S. No. 803 of 1094 was satisfied before the sale was held. It was contended that Exts. III and IV proved payment only of Rs. 273/- and Rs. 248/- respectively and that as there was further balance due under the decree, the sale must be taken to confer on the plaintiff a valid title to the property. No doubt there is no documentary proof to establish the payment of the balance left over after the payments as per Exts. III and IV, but the lower courts had specifically adverted to this aspect of the question and definitely found that regard being had to all the circumstances of the case, the evidence of defendant 3 that the entire decree debt was discharged before the last execution application in the case was filed had to be accepted as true. Indeed the burden of the argument before the lower appellate court would appear to have been on this aspect and that court held that the Trial Court was right in its conclusion that the sale was held after the entire decree was satisfied. In Second Appeal we cannot enter into a fresh examination of the points concluded by the concurrent findings of the two lower courts, as those courts hare acted on good evidence and on the circumstances and probabilities of the case. This is not a case of concurrent findings based on no legal evidence. Not only do the two judgments before us preclude us from reopening the findings recorded in them, but on listening to the arguments of counsel and perusing the records we feel also that had the lower courts decided differently, those courts would have been deciding the case wrongly. We are therefore left free to consider the main point argued before us on behalf of the appellant that regard being had to the provisions of the Code of Civil Procedure, it was not open to the defendants (2 to 5) to question in this litigation the plaintiffs title. Though defendant 1 was not a party to O.S. No. 803 of 1094 and the proceedings in execution of the decree passed therein, he had disowned having any interests in the buildings concerned and even contended that he was not a necessary party to the litigation. The real contest therefore came from or on behalf of the original owners (defendants 2 to 5) and it is about them that the plaintiff contends that they cannot be heard to dispute the plaintiffs title.