MADDINSETTI SATYANARAYANA MURTHY Vs. NUKALA VENKATARAJU

JUDGEMENT

(1.) The 1st defendant in the trial Court is the appellant in this second appeal. This second appeal is directed against the Judgment and decree of the Subordinate Judge, Amalapuram, made in A.S. No. 36 of 1962, modifying the trial Court's decree.

(2.) The material facts, in so far as they are relevant for the disposal of this second appeal, are as follows:-The deceased Pullavarthi Satyanarayana Murthy, whose legal representatives in this second appeal are respondents 5 to 9, obtained a money decree against respondents 1 to 4 in S.C. Suit No. 515 of 1958, subject to the mortgage debt dated 24th October,. 1955, in favour of one Manikyamba. In execution of that decree, the decree- holder, Pullavarthi Satyanarayanamurthi, in Execution Petition No. 374 of 1959, attached the northern half of survey No. 9/2 of Sakurru village, measuring Ac. 1-62 Cents, alleging that it belonged to and was in the possession of Respondents 1 to 4 herein. The appellant herein filed Claim Petition, E.A. No. 507 of 1969, under Order 21, rule 58 of the Civil Procedure Code, objecting to the attachment and praying for release of the said land from attachment. The executing Court allowed the claim petition filed by the appellant. Thereupon, the attaching decree-holder, Pullavarthi Satyanarayanamurthi, filed O.S. No. 23 of 1961 in the. Court of the Distirct Munsif, Amalapuram, claiming declarations that (i) the suit land, i.e., northern half of Survey No. 9/2, Sakurru village, at a partition held in 1949 between Maridi and his nieces, was allotted to the nieces of Maridi; (ii) the nieces of Maridi and their sons sold the same, through the registered sale deed (Exhibit A-3) dated 9th May, 1949, to respondent No.1 herein, Nukala Venkataraju; and (fit) respondents 1 to 4 herein have been in possession of the said land since the sale in favour of respondent No. 1, and for setting aside the order passed on the Claim Petition, E.A. No. 507/1959.

(3.) It was alleged in the plaint that Survey No. 9/2, measuring Ac. 3-25 cents in Sakurru village, belonged to Rameswarapu Maridi and his brother, Venkataswami. Venkataswami died several years ago, leaving behind him his two daughters, Narasamma and Venkamma, who became entitled to his share, i.e., half of Survey No. 9/2. At a partition held between Maridi and his nieces, Narasamma and Venkamma, the northern half of the said survey number, i.e., the suit land, fell to the share and was allotted to the nieces of Maridi. Later, the nieces of Maridi and their sons sold away the northern half of the said survey number, i.e., the suit land, to respondent No. 1, Nukala Venkataraju, by means of a registered sale deed dated 9th May, 1949, for a sum of Rs. 400. Since then, the suit land has been in possession and enjoyment of respondents 1 to 4 herein. Maridi sold away the southern half of the said survey number to one Akula Venkanna for Rs. 400 through the registered sale deed, Exhibit B-18, dated 22nd April, 1949, Venkanna's son and widow sold away the southern half of the said survey number to the appellant through the registered sale deed, Exhibit B-15, dated 14th August, 1958. The appellant is in enjoyment of the southern half of the said survey number. The attaching decree-holder, Pullavarthi Suryanarayanamurthi, however, learnt recently that in the sale deed executed in favour of the appellant, the land sold to him was wrongly described as the northern half of survey No. 9/2, Sakurru village, instead of southern half of the said survey number. The appellant had no right to the northern half, nor was he in possession and enjoyment of the same and hence, the order passed by the executing Court on the appellant's claim petition was wrong. With those averments, the suit was filed by the attaching decree-holder for setting aside the order passed on the claim petition and for various declarations, stated above.