SHAIK BUDDAN SAB Vs. NAGAMMA

JUDGEMENT

(1.) Defendants are the appellants. The trial Court has decreed the respondent:' suit as prayed for, granting a decree in a sum of Rs. 23,730/ with costs, towards damages for breach of warranty.

(2.) According to the plaintiff, defendants 1 and 2, and one Kothapalli Rahmansab (husband of the 3rd defendant and father of defendants 5 to 6) sold a land with an extent of Ac. 12-97 cents under a registered sale-deed dated 7-6-1947, to the 1st plaintiff for a consideration of Rs, 500/- representing that they are the full and absolute owners thereof. They delivered possession of the same on the date cf the sale- deed. Subsequently, the mother of defendants 1 and 2 filed a suit. O.S. No. 407/1952 on the file of the District Munsif's Court, Cuddapah, against the 1st plaintiff herein, contending that the present defendants 1 and 2 or the deceased Kothapalli Rahmansab, had title only to the extent of 6 Acres out of the land conveyed by them and that, the remaining extent ie., Ac. 6. 97 cents, was the property of her husband, V. Chinna Peeran Sab, who is said to have executed three gift-deeds in respect of the said Ac, 6-97 cents in favour of herself and her two daughters Khader Bi and Mahboob Bi (who were impleaded as defendants to the suit). According to the said plaintiff, on 5-8-1944 two sale deeds were executed, one in favour of the present defendants 1 & 2 for 6 Acres, and the other in favour of her husband. V. Chinna Peeran Sab. in respect of Ac. 6-97 cents. It was stated that her husband was the absolute owner of the property purchased by him and that, he executed the said gift-deeds on 10 5 1952 giving all the three of them equal extents therein. The present plaintiff contested the said suit denying the said sale-deed in favour of V, Chinna Peeran Sab and also contending that, even if there is any such sale deed, V. Chinna Peeran Sab was only an ostensible owner and that, the true owners were defendants 1 and 2 and the said K. Rahmansab. The said suit was however decreed and ultimately confirmed in S.A. No. 101/1963 by this court on 4-2-1967. It is stated that, in pursuance thereto, the 1st plaintiff was dispossessed of the said Ac. 6 97 cents of land. The plaintiffs, therefore, filed the present suit for damages for breach of warranty, contending that defendants 1 and 2 the pre- decessor-in-interest of defendants 3 to 6 played fraud upon him by representing that they are the owners of the said Ac. 6.97 cents and that they were competent to convey the same. According to the plaintiffs, the market value of the said land was Rs, 3,000/- per acre on 4-2-67 and that, therefore, he is entitled to the market value of the said land together with a sum of Rs. 3,000/- spent by them towards litigation. Sole plaintiff died pending the suit and his legal representatives were brought on record as plaintiffs 2 and 3.

(3.) Defendants 1 and 2 filed a written statement admitting the truth of the sale-deed executed by them on 7-6-1947, but their contention was that they sold only an extent of 6 Acres belonging to them but that, the 1st plaintiff fraudulently inserted the whole extent of Ac. 12-97 cents, instead of 6 Acres sold by them. It was further alleged that the plaintiff only wanted the attestation of K. Rahman saheb but Rahman saheb never really joined the sale-deed. They denied any knowledge of the proceedings in O.S. 407/52 and the appeals arising therefrom. They submitted that the 1st plaintiff has got the value of the improvements made by him, under the decree in O.S. 407/52 and that, therefore, he is not entitled to any relief.