DODDAPANENI SITARAMIAH Vs. SANKA KANAKAIAH

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the subordinate Judge, Tenali, in a suit filed by the first respondent for recovery of possession of the B schedule lands and for mesne profits. The plaint B schedule property of the extent of 2 acres 68 cents is agraharam land situate in the village of Balijepali. A schedule property of the extent of one acre fid cents bearing D. No. 408/1, is situate in the village of Nelapadu. The B schedule property originally belonged to one Vankamamidi Balakrishnayya, the paternal grandfather of defendants 1 and 2. He was also the hereditary trustee of the temple of Sri Sitharamanjaneyaswami Varu. A schedule property was an endowment to the temple. On 17-3-1933 under Ex. A-1, Balakrishnayya sold the B schedule property to the plaintiff for Rs. 850. On 19-3-1933 by Ex. A-2, Balakrishnayya as trustee of the temple and the plaintiff executed an exchange deed whereunder the temple gave the A schedule property to the plaintiff in exchange of the B schedule properties which the plaintiff purchased from Balakrishnayya two days prior. Subsequently it transpired that the northern hall of the A schedule property was mortgaged to one Choparala Lakshminarayana. He filed O. S. No. 63 of 1932 in the Court of the Subordinate Judge of Bapatla and in execution of the decree obtained therein, he purchased the property and took delivery of the northern half of A schedule lands with crops thereon on 712- 1943. The plaintiff therefore was dispossessed of the northern half of the A schedule land, i.e., 87 3/4th cents in extent. Meanwhile, on 4th December 1934 Balakrishnayya sold the B schedule property along with some other lands in his personal capacity to the fifth defendant. The 6th defendant is the brother of the 5th defendant and both of them are alleged to be in possession of B schedule property. Defendants 1 and 2 are the grandsons of Balakrishnayya. Defendants 3 and 4 are the same persons but added in their separate capacity as the present trustees of the temple. The plaintiff, after having lost half of A schedule property he got under the exchange deed, filed this suit for recovery of possession of B schedule lands with mesne profits and alternatively for compensation from defendants 1 to 4 for the loss incurred by him by being dispossessed of half the lands he got under the exchange deed. Defendants 1 to 4 pleaded 'inter alia' that the sale-deed in favour of the plaintiff conveying the B schedule property was nominal and at any rate not binding on their shares of the property and that the exchange deed was void as it was brought about by fraud and collusion and in breach of 'trust. Defendants 5 and 6, apart from questioning the validity of the exchange, also contended that Balakrishnayya was the absolute owner of the B schedule property and therefore the fifth defendant acquired a valid title thereto under the sale-deed in his favour. The following issues rellect the contentions of the parties : "1. Whether B schedule property was the self-acquired or joint, family property of Balakrishnayya? Whether the reunion set up by defendants 1 to 4 is true and valid? (a) If the reunion is true, whether the sale dated 17-3-1933 is supported by consideration, valid and binding on defendants 1 and 2? Whether' the exchange deed dated 19-3-1933 between the plaintiff and late Balakrishnayya was beneficial to the deity and binding on it? Doddapaneni Sitaramiah and Ors. vs. Sanka Kanakaiah and Ors. (05.12.1950 - MAD... Page 3 of 5 paneni Sitaramiah and Ors. vs. Sanka Kanakaiah and Ors. (05.12.1950 - MAD... Page 3 of 5 If the exchange deed is void, is the plaintiff entitled to any and what damages? Whether the plaintiff is entitled to recover any and what portion of the B schedule property? Whether defendants 5 and 6 are bona fide purchasers for value and whether they have acquired any title? Whether the defendants 5 and 6 are entitled to any and what improvements? Whether the plaintiff is entitled to any and what mesne profits?

(2.) Pending the suit, the plaintiff filed I. A. No. 600 of 1947 for withdrawing the suit against defendants 1 to 4 with liberty to file a fresh suit for the reliefs against them and the petition was allowed on 9-7-1947. Thereafter, the suit proceeded against defendants 5 and 6 alone and the trial was confined to issues 5 to 8. The learned subordinate Judge on a consideration of the evidence held that the sale deed and exchange were not nominal transactions but were acted upon and that the plaintiff would be entitled to a decree for possession of B schedule property under Section 119 of the Transfer of Property Act. He also awarded mesne profits, past and future. Defendants 5 and 6 have preferred the above appeal. As the fifth defendant died pending the appeal the third and fourth appellants are added as his legal representatives along with the second appellant. The plaintiff is the first respondent end defendants 1 to 4 are also added as respondents 2 to 5.

(3.) Learned counsel on behalf of the appellants raised before me two points. (1) On the findings arrived at by the lower Court, defendants 5 and 6 would, be trespassers without title and therefore the plaintiff would not be entitled to possession under Section 119 of the Transfer of Property Act. (2) The lower Court should not have allowed the plaintiff to withdraw the suit as against defendants I to 4 at a late stage with liberty to file another suit as by that procedure, defendants 5 and 6 who were expecting defendants 1 to 4 to establish the defences raised by them, were taken unawares and therefore were prejudiced. If defendants 1 to 4 were on record and the issues framed at their instance were also decided in their favour, either on the ground that the sale-deed Ex. A-1 was nominal or did not bind the shares of defendants 1 and 2 or for the reason that the exchange deed Ex. A-2 was void for one reason or another, the suit would have been dismissed wholly or in part in which case defendants 5 and 6 would have acquired a valid title from Balakrishnayya to that extent.