TIRUMALAI AIYANGAR Vs. ARUNACHALA THEVAR AND ANR.

JUDGEMENT

(1.) THE defendant is the appellant. Respondents 1 and 2 filed the suit for declaration of their title to item No. 2 of the plaint schedule and for an injunction or alternatively for possession of the same. The said item is an extent of 68 cents in the southernmost portion of the northern half of S. No. 455/1, the total extent of which is 4 acres and 8 cents. One Narayana Rao and his. two brothers owned the northern portion of S. No. 455/1, to the extent, of two acres and 5 cents. It is not quite clear whether the extent really is 2 acres. 4 cents, or 2 acres 5 cents. In 1921 there appears to have been a partition, in and by which the southernmost portion was allotted to Narayana Rao. There was an attachment before judgment of Narayana Rao's interest in 2 acres and 5 cents belonging to himself and his brothers in common in O.S.. No. 248 of 1932. The attachment was apparently on the footing of an undivided coparcenary interest of Narayana Rao in the family properties. The fact that there had been a partition was not known to the plaintiff in that action who got the attachment. In 1935 all the three brothers sold the entire property to the present respondents for a sum of Rs. 600. The patta appears to have been a joint patta all along. There is no reference in the sale deed to the partition of 1921 or to separate possession and enjoyment of separate portions of the property by the three brothers. Prima facie it looks as if it is a conveyance by all the three brothers of what was joint property for raising funds to meet family expenses. In 1942 the present appellant filed E.A. No. 49 of 1942 for execution of the decree which he had obtained against Narayana Rao by sale of the property which had been attached before judgment. On 5th March, 1942, the following order was passed on that application:

(2.) SUBSEQUENTLY , the appellant filed another execution petition, E.P. No. 300 of 1942, for sale of the attached property. This was ordered and he purchased the property on 12th March, 1943. The sale was confirmed on 16th April, 1943.

(3.) ON the first point, the learned District Munsiff held that the property purchased by the respondents was not the property which had been attached by the appellant, because what was attached was an undivided one -third interest in 2 acres and 5 cents belonging in common to Narayana Rao and his two brothers, whereas what was purchased was a specific plot of 69 cents in the southernmost portion of the said field which had been allotted to Narayana Rao under the partition in 1921. The learned District Munsiff relied on the decision in Hargulal Singh v. Muhammad Raza Khan, I.L.R. (1890) All. 119. On appeal, the learned Subordinate Judge disagreed with this view and held that the purchased property must be deemed to be the same as the property which was attached. He distinguished the case in Hargulal Singh v. Muhammad Raza Khan, I.L.R. (1890) All. 119., where what was attached was altogether a different interest in the property from what was subsequently sold, the two interests being separate and of different: values. That was really a case where the properties must be deemed to have been distinct and different. It is not possible to take the same view of the property in question in the present case. It is only a different form of the right, title and interest of Narayana Rao which was attached and which was sold. No doubt, there was an error or a misdescription in describing the nature and interest of Narayana Rao in the property when it was attached; but in the circumstances of the case I agree with the learned Subordinate Judge in holding that the property purchased by the respondents was in fact and also must be deemed in law to be the identical property which had been attached earlier by the appellant.