JONNALAGADDA DAKSHINAMURTHI Vs. INGUVA SITHARAMAYYA

JUDGEMENT

(1.) This is an appeal brought by defendants 2, 3 and 5 as against the Judgment and Decree of the Subordinate Judge of Masulipatam in O.S. No. 56 of 1948 directing partition of the suit properties. The suit was instituted by respondents 1 to 3 as against the 4th respondent and the alienees from the 4th respondent. Appellants 1 and 2 claimed to have purchased the B schedule properties under a sale deed, marked as Exhibit B-3 on 28th June, 1941.

(2.) After the institution of the suit on 21st July, 1948, defendants 2 and 3 alienated the B schedule properties in favour of the 5th defendant under a sale deed, marked as Exhibit B-14. The plaintiffs filed LA. No. 955 of 1949 for impleading the 5th defendant as a party to the suit. In the affidavit filed in support of the application it was alleged that defendants 2 and 3 sold B schedule property collusively to the 5th defendant on 26th July, 1948 and that he was a necessary and proper party to the suit. The application was ordered and the 5th defendant was added as a party to the suit.

(3.) The only question that arises for consideration in the appeal is as to what equities the appellants are entitled to in the partition suit. The issue that was raised in regard to this matter is issue No. 7 and runs as follows :- "To what equities are defendants 2 and 3 entitled ?" The Subordinate Judge found in paragraphs 14 to 16 that as defendants 2 and 3 had alienated the property to the 5th defendant, they were not entitled to claim any equity and that the 5th defendant was only entitled to recover damages as against his alienors, defendants 2 and 3. Defendants 2, 3 and 5 have consequently preferred this appeal.