K RAMAKOTAIAH Vs. M SUBBARAO

JUDGEMENT

(1.) The Second Appeal arises out of 0. S. No. 693/72. a claim suit filed by the plaintiff-appellant, on the following material facts. The property involved in the suit belonged to the 2nd defendant, the plaintiff's elder brother, the 2nd defendant having been allotted that property to his share under a registered partition deed of the Year 1947. The 1st defendant is the brother-in-law of the 2nd defendant. The 1st defendant's mother is the sister of the father of the plaintiff and the 2nd defendant. The 1st defendant obtained an exparte money decree against the 2nd defendant in O. S. No. 118/70 on the file of the Sub-Court, Eluru. In E.P. No. 157/71 the 1st defendant attached the scheduled property on 13-8-1971. The plaintiff intervened with a claim petition in E. A.No.687/71 which was dismissed on 22-4-1972 by an order of the Subordinate Judge, the certified copy of which is filed as Ex A. 15. The plaintiff thereupon filed the claim suit O.S No. 693/72 on the file of the Dist. Munsif's court, Eluru. The basis of the claim and the claim suit is the agreement Ex.A.1 dt. 22-2-1961 executed by the 2nd defendant for him self and as guardian of his minor son. Ex A-1 provided, inter alia, that the 2nd defendant agreed to sell the property subject-matter of the suit in favour of the plaintiff for a total consideration of Rs. 3,140/- and an amount of Rs 300/- was paid as advance; the balance sale consideration was agreed to be paid before the end of April 1961; the plaintiff agreed to bear the necessary expenses for stamp and registration and get the document registered if there was any default in paying the balance consideration it was to carry interest at 6% per annum from the dua date; the 2nd defendant agreed to get the land surveyed and measured and receive the balance consideration calculating the price at the rate of Rs. 3,100/- per acre and the 2nd defendant also agreed to apply the balance sale consideration towards discharge of his debts and give to the plaintiff the debt bonds as vouchers According to the plaintiff, the 2nd defendant was indebted to him under the pronote Ex. A.2 dt. 15-3-1959 and an amount of Rs. 950/- from out of the balance sale consideration went in discharge of Ex-A.2 pronote on which the necessary endorsement of fulI satisfaction was made under Ex. A.3 dt. 15-3-1961; the 2nd defendant was indebted to one Chukkamma under a pronote and the said pronote was discharged in full on 15-3 61 under Ex. A.4 endorsement by paying Rs 870/- to Chuk- kama; the 2nd defendant also owed monies to one Soubhagyamma under the pronote Ex.A.17 dt. 4-3-61 and the plaintiff paid her Rs 1020/- on 1-4-61 and obtained Ex.A.5 endorsement of discharge. According to the plaintiff, the total amounts paid by him amounted to Rs. 3140/- the price agreed upon between the parties in terms of Ex.A. 1 and the 2nd defendant gave him possession of the property in the 1st week of May 1061 and since then he has been in possession and enjoyment of the property and that subsequently some misunderstandings arose between him and the 2nd defendant who began to postpone executing the registration of the sale deed end he suffered a collusive exparte decree at the hands of the 1st defendant, The case of the 1st defendant is that Ex.A.1 sale agreement is brought into existence collusively with an ante-date to defeat his decree and the pronotes and the endorsments of discharge have been collusively brought into existence and ihe 2nd defendant alone continued to he in possession of the property and that the plaintiff was never in possession thereof at any time. The 2nd defendant remained exparte. The plaintiff has examined a number of witnesses in proof of Ex.A.1 sale agreement and the pronotes referred to above. He has also filed tax receipts in proof of his possession. He examined some nots to speak to his possession in the suit property since 1961. The 1st defendant has besides examining himself examined two agricultural coolies to support his version that it is the 2nd defendant that has been in possession of the property. He relied on some revenue accounts to say that the 2nd defendant is shown as the person in possession of the suit property.

(2.) The learned District Munsif accepted the plainiiff's case and set aside the claim order and decreed the suit. The 1st defendant carried the matter in appeal in A.s.No. 2/76 on the file of the Sub Court, Eluru. The learned Sub Judge held that Ex-A 1 sale agreement is true. He, however, proceeded to say that the plaintiff did not come into possession of the suit land pursuant to Ex A-1 sale agreement and the plaintiff cannot, therefore, rely on Sec. 53-A of the TRANSFER OF PROPERTY ACT, 1882 in support of his claim. He further held that Ex.A-1 contemplated only for the discharge of the debts by the 2nd defendant and did not entitle the plaintiff to apply the balance sale consideration towards the discharge of the debts of the 2nd defendant and to that extent there was variation in terms of Ex A-1 contract and for that reason also the plaintiff cannot seek the aid of Sec. 53-A of the TRANSFER OF PROPERTY ACT, 1882 in support of his claim. He placed reliance upon Modiboyina Besavalah V. Kaniati Venkata Subbareddi (1) 1969 II An. WR 308 and held that the 1st defendant had the right to attach the property of the 2nd defendant. With those findings, the Sub Judge allowed the appeal and dismissed the plaintiff's suit. The plaintiff has, thereupon, preferred this Second Appeal.

(3.) The concurrent finding of both the courts is that Ex-A-1 sale agreament is true and was not brought into existence collusively as sought to be made out by the 1st defendant. The correctness of that finding has not been assailed in any manner before me.