MASUM VALI SAHEB Vs. ILLURI MODIN SAHIB

JUDGEMENT

(1.) This second appeal has come before us as it was referred to a Bench by one of us, having regard to the divergence of Judicial opinion on the main point involved in the appeal.

(2.) Defendants 1 to 8 are the appellants in this second appeal. The facts, so far as is necessary to appreciate the question involved in the second appeal, may be briefly stated:

(3.) The suit house originally belonged to Khasim Peeran. This was built by him on a portion of a plot of land shown as A B C P E F G in the plan attached to the plaint. In the family division amongst the brothers, the site, on which the suit house is built, was allotted to Khasim Peeran and, subsequently, he built thereon the suit house. In discharge of a dower debt, Khasim Peeran transferred this house to his wife, Basiri Bibi. Basiri Bibi, in her turn, sold this house to the plaintiff in or about the year 1941 for a consideration of Rs. 250. After the death of Khasim Peeran, a creditor of his filed a suit on the foot of a promissory note, Section C. No. 54 of 1941 on the file of the District Mun-sif's Court of Prodattur and obtained a decree thereon. In execution of the decree, 1/4 share inABCDEFG was sought to be attached. Thereupon, the defendants intervened with a claim petition, Ex. P. 5. which was allowed with the consequence that what was sold was the site marked C D E F in the plan on which the suit house stood. This was purchased by the decree-holder himself. The defendants once again came forward with a claim petition for redelivery of the properties, as though they were once in possession and were dispossessd by the auction purchaser. Evidently, this was not resisted by the auction purchaser, with the result that the claim was allowed. Since the present plaintiff was. not a party to that claim petition, another application, E. A. No. 617 of 1943, which has given rise to this second appeal, was filed by the defendants impleading the present plaintiff as a party, for removal of obstruction and for re-delivery. This application though it purports to be under Section 141 or 151 Civil P. C. seems to be really one under Order 21 Rule 100. Despite the opposition of the present plaintiff, the claim petition was allowed by the District Munsif of Prodattur and the plaintiff was directed to put the defendants in possession thereof. This led the present plaintiff to institute a suit for a declaration of his title to the property based on a sale deed executed by the widow of Khasim Peeran in his favour and also for a declaration that the property was not liable to be redelivered to the defendants.