T VEERABHADRA RAO Vs. B VENUGOPALA RAO

JUDGEMENT

(1.) This Letters Patent Appeal is preferred by the original plaintiff in O.S.No. 43 of 1976 on the file of the Subordinate Judge Court, Rajahmundry. It was a suit for recovery of a sum of Rs. 16,000/- with interest and costs from the defendents on the allegation that the 1st defendent sold suit schedule -A property in favour of the plaintiff vide registered sale deed dated 18-4-1964 vide annexure A-1 for a consideration of Rs. 6,000/-; the B-schedule property were offered as security in the sale deed vide annexure A-1 towards the loss that may be caused to the plaintiff on account of any obstruction by any one at any time in future in respect of A-schedule property covered by the said deed. It is further alleged by the plaintiff that there is not only an obstruction to the title of the plaintiff but it is discovered that the defendents had no title to the property in as much as the plaintiff's vendor D.W.1 claimed to have got the plaint A and B schedule property under the settlement deed Ex.A-5, dated 4-9-1961 executed by one Smt. Galla Ammajirao who in turn got them under a partition decree under Ex.A-13, a decree in O.S.No. 47 of 1922, dated 4-2-1926 on the file of the Subordinate Judge Court, Rajahmundry, but the said decree does aot mention the suit property. He further alleged that the property that was sold under Ex.A-1 was an undivided half share of defendent No. 1 in Sy.No. 37/2 (87/3 is old Sy.No.) of Rajahmundry in 9 acres and 30 cents. The said half share sold under Ex.A-1 comes to 4 acres and 65 cents. As per the sale deed, Ex.A-1 plaintiff was to be put in possession of the property by the 1st defendent and when the plaintiff wanted to take steps for partition and separate possession of half share and contacted other co-owner Pothula Ramkrishna Rao, but the said Pothula Ramkrishna Rao told him that neither defendent No. 1 nor his predecessors in interest, Smt. Galla Ammajirao had any title or possession over the suit schedule A-property. At that time the plaintiff demanded from the 1st defendent to give possession and title deeds of the suit land. He did not do so. On a further enquiry the plaintiff came to know that neither the 1st defendent nor Smt. Galla Ammajirao had any title to the suit schedule-A property. Since there was a breach of warranty of title of the plaintiff he sought a mortgage decree against the defendents. Defendent Nos. 2 and 3 are the purchasers of the suit schedule B property. During the pendency of the suit defendent No. 3 died and as such defendents 4 to 7 are brought on record as his legal representatives. The defendant No. 1 remained ex parte.

(2.) By filling a written statement the defendents have contended that the plaintiff has purchased suit schedule-A property after being Satisfied about the title of the 1st defendent. The defendent No. 1 got plaint A and B schedule properties under the settlement deed, Ex.A-5, dated 5-9-1961 from Smt. Galla Ammajirao. As such there was no defect in the title and the indemnity offered was not for any defect in the title. They further contended that the plaintiff himself was guilty of not taking steps to take possession of the suit schedule-A properties. Defendents 4 to 7 contended that item Nos. 2 and 3 of the schedule B properties purchased by them from defendent No. 1 were demolished by the Rajahmundry Municipality for widening the road and as such those properties are not in existence and the Rajahmundry Municipality had offered a paltry sum as compensation and the defendent No. 4 has refused to receive the same. As against this allegation of defendent Nos. 4 to 7 the plaintiff pleaded by rejoinder that what Rajahmundry Municipality had demolished was only a super-structure and it had not acquired the entire property. At any rate, plaintiff contended, defendents No. 4 to 7 are not absolved of their liability. It is to be mentioned at this stage itself that the 1st defendent, who is the vendor of the plaintiff neither filed a written statement nor contested the suit. On the basis of these pleadings and counter pleadings the plaintiff and defendents went to trial. Plaintiff examined himself as P.W. 1. He examined Sista Kameshwar Rao as P.W. 2. He got marked documents in support of the case vide annexure A-1 to A-14. On the other hand for the defendents, the defendent No. 4 examined himself as D.W. 1 and Bonam Venugopal Rao as D.W. 2. In support of their case defendents also filed documents vide annexure B-1 to B-4.

(3.) On appreciation of the entire evidence on record the trial Judge being of the opinion that the 1st defendent did not have any title or possession over the suit schedule property sold under Ex.A-1 to the plaintiff and thus there was a breach of warranty of title and as such the plaintiff was entitled to recover the consideration paid under the sale deed dated 18-4-1964 vide annexure A-1, and consequently granted a preliminary decree in favour of the plaintiff ordering the sale of B-schedule property for the recovery of a sum of Rs. 6,000/- towards the refund of sale consideration under Ex.A-1. He also granted a decree for an amount of Rs. 575/- that was spent towards stamp and registration charges. Thus, he granted a decree for Rs. 6,575/- with proportionate costs and interest at the rate of 6 per cent per annum from 19-2-1976 till the date of realisation. Being aggrieved by the said judgment and decree defendents No. 2 to 7 preferred an appeal before this Court in A.S.No. 286 of 1981. The learned single Judge after hearing both sides, being of the opinion that under Section 55 (2) of the Transfer of Property Act there is a statutory presumption that the vendor had title to the property and as such a power to transfer the same, and the plaintiff has filed this present suit just before the expiry of the limitation and as such he is not entitled to any relief, in this view of the matter he allowed the appeal and set aside the judgment and decree of the trial Court by dismissing the plaintiff suit. It is in these circumstances the plaintiff has filed the present Letters Patent Appeal.