SHARIFF IQBAL HUSSAIN AHMED Vs. KOTA VENKATA SUBBAMMA

JUDGEMENT

(1.) At issue in these two Letters Patent Appeals is:

(2.) The facts briefly stated, thus, are: Plaintiffs 1 and 2 had instituted O.S. No.37/71 and O.S. No.248/71 for recovery of possession of suit schedule properties. In O.S. No.37/71, the property comprised is structures covering 72 sq. yards and odd. In O.S. No.248/71, it is structures covering 49 sq. yards and odd. The property in O.S. No.37/71 was purchased by D-2 and D-3 by a registered sale-deed dated 27-11-1969, Ex.A-115 is the registration extract. The property in O.S. No.248/71 was purchased by D-7 and another and the latter's LRs are D-2 to D-6. D-1 was a lessee of the suit properties. The property in O.S. No.248/71 was sold on 19-11-1969. Ex.A- 116 is the registration extract, Plaintiff No.1. is sister's son of Plaintiff No.2. Plaintiff No.2 was gifted the suit property by her father under Ex.A-1 dated 21-4-1926. She was married to P.W.2 after 5 years of the said gift, but they had no issues and plaintiff No.l (P.W.3) was brought up by 2nd plaintiff and her husband (P.Ws. 1 and 2). The suit properties were in turn gifted by the 2nd plaintiff to the 1st plaintiff under Ex.A-2 dated 15-7-1948. Under the said deed, Ex. A-2, plaintiff No.2 reserved her right to enjoy the property till her death. D-l is closely related to the plaintiffs. He had premises adjoining the suit properties. While the assessment number of the suit properties was 7928, D-l had his property adjoining the suit properties bearing assessment No.7927. The suit properties were leased out to D-l with effect from 1-1-1959 on a monthly rent of Rs.45/-. He paid the rents till 30-11-1969. He in turn inducted other tenants. On 2-9-1969, he proposed the sale of his building and suggested the 2nd plaintiff to sell the suit properties also. But, admittedly, no purchaser was brought to plaintiffs or any agreement was entered in to . The 1st defendant had been running a partnership firm along with other partners. D-l and his other partners had executed the originals of Exs.A-115 and A-116. P.W.I is the 2nd plaintiff, P.W.2 is her husband and P.W.3 is the 1st plaintiff. The defence set up by the defendants was that the plaintiffs are not the owners and that they did not exercise their ownership rights over the suit properties and that the gifts made either to 2nd plaintiff by her father or by 2nd plaintiff to the 1st plaintiff were invalid. It was also pleaded that the 1st defendant exercised his ownership rights and that he was the ostensible owner and in any event, he had acquired right by prescription and as such sales effected under originals of Exs. A-115 and A-116 were valid and binding. They also set up the plea that they are the bona fide purchasers for valuable consideration and that they cannot be subjected to either eviction or liable to pay damages. Triable issues were framed and on appreciation of oral and documentary evidence adduced by either parties, the trial Court held that the 2nd plaintiff became the owner of the suit property by virtue of Ex. A-1 and then the 1st plaintiff by virtue of gift under Ex. A -2 and that the said gifts were true, valid and acted upon and that, the first defendant and his co-vendors had no title to the suit properties and that they did not acquire any prescriptive rights and they were not treated as ostensible owners even. In the result, the trial Court has recorded a finding that the plaintiffs are entitled to recover the suit schedule properties after ejecting the defendants therefrom. Having held'so, the trial Court has granted a decree in O.S. No.37/71 to pay the plaintiffs Rs.18,650/- towards the site and building and Rs.11,350/- in O.S. No.248/71 towards the value of the site and the building and at 12% interest from 1-12-1969 till the date of decree and 6% interest on the principal amount from the date of decree till realisation. It was also held by the trial Court that the said amounts due to the plaintiffs are in the nature of unpaid purchase money. It was held that they shall also be entitled to a charge on the newly constructed J- building and the site for recovery of principal amount, interest and costs.

(3.) The trial Court held "The purchasers have also failed to prove that they had made proper enquiries to find out the real owner of the suit property before they had purchased the same. They have not examined a single tenant or neighbour to state that the 1st defendant was the ostensible owner." The trial Court also held "in view of my findings on Issues 1 to 3 in both the suits, I find that the plaintiffs are entitled to recover the possession of the suit property after ejecting the defendants from there. But, it has been found that the defendants 2 and 3 in O.S. No.37/71 have demolished the old building in the site of the plaintiffs as well as the site to which the vendors were entitled and had constructed a new four storied building thereon. It is also stated that the defendants 2 to 7 in O.S. No.248/71 had made improvement to the old building."