MANGU KAMALAMMA Vs. MOHAMMED

JUDGEMENT

(1.) This C.M.A. is directed against an order passed by the Second Additional Judge, City Civil Court, Hyderabad in an application filed by the appellants for restitution under section 144, Civil Procedure Code. The salient facts leading up to this appeal are briefly as follows:- The respondents instituted O.S. No. 10/1 of 1952-53 against the appellants in the Court of the District Judge, Mahaboobnagar. That suit was for a declaration of the plaintiffs' title and for possession of the properties. The plaintiffs claimed that they were entitled to the properties on the strength of a sale deed and an oral sale by the first defendant in favour of the minor son of the first respondent herein. The minor vendee having died, the present respondents instituted the aforesaid suit. The suit lands are Makta lands. The Maktadar was one Venkata Rao. On his death, his widow, the first defendant-appellant inherited those lands. The first respondent was appointed by the first defendant-appellant as a power of attorney agent. While so, he managed to get a sale deed and an oral sale of the residential house from the first defendant-appellant. He and his wife and other children brought O.S. 10/1 of 1952-53 on the allegation that after the Police Action in 1918, they were dispossessed of the lands and the house and that therefore they were entitled on the strength of title to be restored to possession. The defence was that the alleged sale deed, the oral sale and the sanad were false and were the result of Undue influence exerted by the first respondent (power of attorney agent) on the first defendant-appellant. The learned District Judge dismissed the suit holding that the plaintiffs 'had neither title nor possession' of the suit properties and that they were not entitled to possession or any other right to the properties. The aggrieved plaintiffs preferred First Appeal No. 10/1 of 1954-55 to this High' Court. A Division Bench of the High Court dismissed that appeal and confirmed the judgment of the trial Court. In the course of the judgment, the Division Bench observed as fellows :-

(2.) It is not necessary to extract any other passage from the High Court's judgment. The only other fact that may perhaps be mentioned is that the second defendant in the suit was the brother of the husband of the first defendant and his joinder in the suit and in the appeal being of no consequence, it is not necessary to refer to him hereafter.

(3.) During the pendency of the suit instituted by the present respondents, they applied for the appointment of a Receiver on dispossessing the tenants who were cultivating the lands holding under the first defendant. A Receiver was accordingly appointed by dispossessing the tenants who were inducted into possession by the first defendant and the right to cultivate the lands was auctioned by the Receiver every year. Even after the suit was dismissed, the plaintiffs made an application for continuance of the Receiver in the High pourt and that was allowed. After the appeal was also dismissed, the present first appellant who was the first defendant in the suit and the main contesting defendant, took out an application for restoration of the suit properties to her and for a direction to the Receiver that she be put in possession of those properties. This application was resisted by the present respondents who were the plaintiffs in O.S. No. 10/1 of 1952-53. The learned Second Additional Judge, City Civil Court, Hyderabad, after dealing somewhat elaborately with the law relating to section 144, Civil Procedure Code, thought fit to dismiss the application. Hence the present Civil Miscellaneous Appeal.