PONNA KOTAYYA Vs. PONNA PEDA KOTILINGAM

JUDGEMENT

(1.) The unsuccessful parties in OS No. 100 of 1982 and OS No.84 of 1982 on the file of the Court of Subordinate Judge, Narsapur, preferred these appeals, AS Nos.1320 of 1991 and 1321 of 1991 respectively on the file of this Court.

(2.) The appellants herein are the plaintiffs in OS No.84 of 1982 and the defendants in OS No.100 of 1982. In view of the memo filed on 15-4-1988 before the learned Subordinate Judge aforesaid, both the suits, OS No.84 of 1982 and OS No.100 of 1982 were clubbed and evidence was recorded in OS No.100 of 1982 and both the suits were disposed of by a common judgment. The suit filed by the appellants- plaintiffs for declaration that they are in possession of the plaint schedule lands and for consequential relief of permanent injunction or alternatively for a decree of Rs.24,545-75ps., with subsequent interest @ 18% p.a., the principal relief of declaration and injunction had been negatived but on the ground of equity refund had been ordered. The other suit, OS No.100 of 1982 filed by the respondent for recovery of possession had been decreed. Aggrieved by the said decrees and judgments referred to supra, these appeals are preferred by the plaintiffs in OS No.84 of 1982 and the defendants in OS No.100 of 1982.

(3.) Contentions of Sri Satyaprasad :- Sri Satyaprasad, the learned Counsel representing the appellants in both these appeals had taken this Court through the oral and documentary evidence available on record and would maintain that in the facts and circumstances, inasmuch as the father had alienated the property for the purpose of discharging the family debts as kartha of the family the same is binding on both the major sons and minor sons of the family and hence inasmuch as the said agreement of sale being binding on all the family members, suit for permanent injunction is maintainable, since the fact that these parties are in possession of the properties, the same is not in serious controversy. The learned Counsel would also maintain that for the applicability of Section 53-A of Transfer of Property Act, 1882 necessarily possession need not be delivered as on the date of agreement of sale. The Counsel would also maintain the fact that possession had been delivered is not in serious dispute, though it is at a subsequent point of time and the very fact that a suit for possession is filed would go to show that these parties are in actual possession and enjoyment of the plaint schedule property. The learned Counsel would also point out that the dispute relating to the house had also been raised but however the same had been negatived and though several contentions were advanced relating to the very genuineness of the agreement of sale, raising a plea of forgery, the learned Judge recorded positive findings relating to the agreement of sale in question Ex.B2 and having arrived at such a conclusion the learned Judge erred in not granting the relief of permanent injunction and ordering only refund. The learned Counsel also had taken this Court through the oral evidence available on record. The Counsel also would contend that a notice for partition dated 2-6-1982 was given and the contents of the notice if carefully scrutinized, would not specify the agreement of sale. The very fact that all the parties to the suit filed for recovery of possession would go to show that notice is only collusive one and hence adverse inference may have to be drawn. The learned Counsel explained in detail the ingredients to be satisfied for the applicability of Section 53-A of the Transfer of Property Act, 1882 and also had explained the binding nature of the agreement of sale in question on the other coparceners under the general principles of Hindu Law and in fact placed reliance on certain decisions to substantiate his contentions.