NAGAM SIVA REDDY Vs. B NAZAMUDDIN SAHEB

JUDGEMENT

(1.) This Second appeal is directed against the judgment of the Additional District Judge, Kurnool who on appeal, confirmed the decree-passed by the District Munsif, Kurnool in O. S. No. 163 of 1957. The salient facts leading up to the Second appeal are succinctly as follows : The suit land and some other lands belonged to one Khaja Saheb. He died leaving behind 8 sons 2 daughters and his widow. One of the sons who survived him was Hamid Miyah. The appellant before me, who was the defendant in the trial Court, instituted a suit, O. S. No. 266 of 1954, on the file of the District Munsif, Kurnool, for recovery of a loan which had been advanced to the said Hamid Miyah. At the time the suit was instituted, Hamid Miyah who borrowed the money from the appellant herein, was dead and therefore, the legal heirs of Hamid Miyah were sued for the amount which was due to the appellant from Hamid Miyah. A decree was duly obtained by the appellant. In execution, he attached and brought to sale the property described in the plaint schedule as though it was a separate and exclusive property of deceased Hamid Miyah which had devolved on his heirs. At the execution sale the appellant himself purchased the property. Thereafter he hied to take possession of the property through Court. But this attempt failed because the plaintiff (who is the respondent herein) and other co-owners obstructed delivery of possession to the appellant. The Amin who was entrusted with the process of the Court to effect delivery to the appellant reported that the property was in the actual possession of the respondent and his co-owners. This, however, did not discourage the appellant from pursuing the matter. He took steps later to the same end and obtained a report, Ex. B-l, from the Amin stating that the property was actually delivered to the appellant. The plaintiff as a person in actual possession of the property along with other undivided properties instituted the present suit for a permanent injunction to restrain the appellant from entering upon the property and interfering with the possession of the plaintiff and his co-owners.

(2.) The suit was resisted by the defendant mainly on the ground that he became the exclusive owner of the plaint property under the Sale Certificate obtained by him in execution of the decree in O. S. No. 266 of 1954, and also by obtaining possession in execution of the sale Certificate, as evidenced by Ex. B-l.

(3.) The two questions that arose for consideration before the Courts below were (1) whether there was a partition between deceased Hamid Miyah and his brothers, sisters and mother, who were all co-owners of the properties left behind by Khaja Saheb: and (2) whether the appellant really obtained actual delivery of possession of the plaint property under Ex. B.I.