P SRINIVASAN Vs. SUSEELABAI

JUDGEMENT

(1.) THE plaintiff, who succeeded in the trial Court but failed in the appellate has filed this appeal. THE suit is for declaration of his title and for recovery of possession. case set out in the plaint is as follows: THE suit property and other properties belonged one Ramachan-dra Naidu and others. THEy executed a promissory note for Rs.400 11.11.1959 in favour of one Doraisamy Naidu, who filed O.S.No.437 of 1961 for recovery the amount due. A decree was passed in that suit and in execution thereof, the suit property and other properties were attached. THE plaintiff obtained an assignment of the decree brought the properties to sale on 22.8.1962. He was the successful bidder and after confirmation of the sale, he got delivery of the properties on 8.1.1963. After the plaintiff delivery, he was in enjoyment. But, the crops that were in the land at the time of were harvested by the defendants without informing the plaintiff. THE defendants fully well that the debt due under the promissory note remained undischarged, brought a sale deed as if the first defendant purchased the property with a view to defeat creditors. THE sale deed is sham and nominal and it is not valid. After the plaintiff possession, the defendants trespassed on the land forcibly and unlawfully and are enjoying the same. A notice was issued through a lawyer on 1.1.1967 to defendants 1 and another person by name Kannan. THE first defendant received the notice and did not any reply. THE other two persons refused to receive the notice. THE second defendant husband of the first defendant. THE third defendant is the abhimana baryal of the defendant. THE defendants are liable to deliver possession and pay mesne profits to the plaintiff. Hence, the suit.

(2.) DEFENDANTS 1 and 2 filed a written statement disputing the averments found in the It was stated in the written statement as follows: The alleged delivery on 8.1.1963 suit land to the plaintiff is denied. The possession of the defendants was never disturbed any person. The delivery receipt referred to by the plaintiff is only an evidence of delivery and there was no actual delivery. The saledeed in favour of the first defendant a genuine one, supported by consideration. The first defendant has been in possession since the purchase and the plaintiff is not entitled to any relief. The alleged purchase plaintiff in Court auction does not bind the first defendant. The first defendant purchased acres out of 2.75 acres on 20.12.1960 for Rs.500 from Ramachandra Naidu and she was in possession. From 6.7.1962 to 30.6.1965, one Kannan cultivated the suit lands three separate lease deeds executed by him every year and the third defendant assisted first defendant in the agricultural operations. On the date when O.S.No.437 of 1961 filed, Ramachandra Naidu had no interest whatever in the suit land and the plaintiff right thereto. The plaintiff is not entitled to any profits and the suit is barred by limitation.

(3.) ON appeal, the learned Second Additional Subordinate Judge reversed the conclusions the trial Court. The appellate Judge held that the transaction in favour of the first defendant was not in any manner affected by Sec.53 of the Transfer of Property Act, as Ramachandra Naidu, the vendor of the first defendant had other properties on the date of Ex.B-1 and was no proof that Ramachandra Naidu was trying to defraud his creditors. The appellate court also held that it was not open to the plaintiff to attack Ex.B-1 as a sham and nominal transaction. The appellate Court held that the plaintiff never took delivery of the property pursuant to his purchase in Court auction and there was only a paper delivery. ON findings, the appellate Court dismissed the suit.