MUTHA SARVARAYUDU Vs. VAMMI KONDALARAYUDU

JUDGEMENT

(1.) This is an appeal by defendants 1 to 5 and arises out of a suit in ejectment which was decreed in favour of the 1st respondent-plaintiff by the court of the Subordinate Judge, Kakinada. The property in dispute is an extent of Acs. 8-0 of inam dry land, forming a portion of survey No. 640, which measures acs. 32-01 and is held under patta No. 6, in the village of Chebrolu in the Estate of Pit(SIC) The plaintiffs case was that the entire survey No. 640 was one of the properties that fell to the share of his maternal grand-father, Peethala Appanna, at a partition between the latter and the latters brother, Peethala Rajayya, that the said Appanna, having no sons, gave his properties before he died in 1928 to the plaintiff under a registered settlement deed Ex. A. 3 dated 25-11-1926 and that subsequently the plaintiff sold portions of survey No. 640 to different persons and retained possession of the remaining acs. 8-00. He brought the suit on 2-2-1948 for a declaration of his title and for recovery of possession, on the allegation that the late Mutha Venkateswarlu, who was the undivided father of defendants 1 to 5, had forcibly ousted him from possession at the end of May 1937. The defendants case was that the suit land belonged to Peethala Rajayya, who had mortgaged it along with other properties for Rs. 8,000.00 to the Mutha people under Ex. B-7 dated 5-6-1917, that at the sale in execution on 2-7-1935 in enforcement of the mortgage, the late Mutha Venkateswarlu and his brothers son who were the decree-holders, purchased the property and that the defendants and their predecessors were in possession ever since delivery was obtained through Court on 2-2-1936. By an amendment of the written statement, it was also contended by them that the Official Receiver is a necessary party to the suit as the plaintiff had been adjudicated insolvent in I. P. No. 9 of 1932 and his properties continued to vest in the Official Receiver for the benefit of his creditors though he was discharged; and that the plaintiff was estopped from claiming the suit property because he did not disclose it in the insolvency proceedings.

(2.) On a careful consideration of the entire evidence, the learned Subordinate Judge found that the whole of survey No. 640 fell to Peethala Appannas share at the partition and passed on to the plaintiff under the settlement deed Ex. A-3 dated 25-11-1926, that defendants 1 to 5 acquired no title to the property by the Court sale as the mortgagor Rajayya himself had no title, that the plaintiff and his father with his permission were in possession of the acs. 8-00 until the trespass on the side of the defendants in the year 1937 and that no question of the defendants having perfected their title by adverse possession arose because the suit was filed within 12 years from 2-2-1936, the date of the alleged delivery through Court. He also held that the Official Receiver was not a necessary party and that no question of estoppel arose and passed a decree in favour of the plaintiff.

(3.) The appellants applied to this court in. C. M. P. No. 1714 of 1957 for further amending their written statement so as to clarify the contentions raised by them in connection with the plaintiffs insolvency. We allowed the amendment and have received the findings of the lower court on the additional issue involved.