YAMUNA BAI Vs. M PARASURAMAIAH

JUDGEMENT

(1.) This revision is directed against the order of the IV Additional Judge, City Civil Court, Hyderabad, whereby he permitted the plaintiff to sue in forma pauperis.

(2.) The plaintiff brought a suit for the various reliefs including the recovery of past rents and profits from February, 1959 in a sum of Rs. 1,02,000/- and for an injunction against defenders 1 and 2 restraining them from withdrawing the profit amounts deposited in O.S. No. 55/65 on the file of the same court and for future profits at the rate of 6,000/- per year.

(3.) The case of the plaintiff in short was that the 3rd defendarentered into an agreement of sale with regard to certain agricultural lads on 11-12-1958 and that he paid a part of the consideration. The terms of the contract were that the sale price is to be calculated on measurement if the land, the rate was fixed at Rs. 1,400/- per acre for wet land and Rs.900/- for dry land. Till the vendor obtaining the permission of the Collectr for sale of the agricultural land, the vendor should cultivate the land on bhalf of the vendee and for that purpose, he also received Rs. 300/- towardscultivation expenses and that he initially paid Rs. 700/-, that the remainingpurchase amount was to be paid by the end of February, 1959 at the tiie of the execution of a proper conveyance and delivery of possession. It is lowever the case of plaintiff that the 3rd defendent committed default in excut- ing the proper conveyance and therefore the plaintiff laid the suit O.S No. 9/62 for specific performance. That suit was decreed on 11-7-1963. As against that judgement the 3rd defendant filed an appeal, which appealwas dismissed by the High Court. While so, there was a suit O.S. 55/65 (airenumbered) filed in the year 1948 on the file of the IV Additional Judge, City Civil Court, Hyderabad, by one R.S. Chenoy for possession of the very uit land among other lands. To the said suit there are altogether five defendents, including defendants 3 to 5. The 5th defendent who is the mother of 3rd defendant was also a party to the said suit. That suit was decreed on 25-10-1968. The 3rd defendant got that decree assigned in favour of be present defendants 1 and 2, who, according to the plaintiff of this suit, re either his concubines or the friends of 3rd defendant. The assignment of that decree is said to be a benami one for the benefit of the 3d defendant herein. In pursuance of the decree in O.S. No. 9/62 the plaintiff sought execution. In the said execution petition, dcfendents 1 and 2 alo filed an E.A. objecting to the execution of the decree on various grounds. It would however transpire that the objections preferred by defendants 1 and2 in the said execution petition, were over-ruled by the executive Court. Me an while, the 3rd defendant set up his mother as,the owner of the suit prop tties and got filed another suit, i.e., O.S. No. 800/69 and the same was also dismissed on 14-7-71. Defendants 1 and 2 herein also filed another sut O.S. No. 538/71 to the effect that the decree passed against the 3rd defenrant herein in OS. No. 9/62 is not blinding upon them. While the various proceeding are pending this suit is laid by the plaintiff claiming past and future mesne profits. The contention is that though the transfer of the suit lands was made in his favour by the 3rd defendant while the earlier suit was penddiug, as the assignment of the decree in O.S. No. 55/65 in favour of defendants 1 and 2 is only a benami one for the benefit of the 3rd defendant here in, be is bound to make good the title of of the suit lands to the plaintif. It is thus contended that defendants 1 and 2 on account of the assignment of the decree, are only in the position of trustees for the plaintiff and therefore are are liable to restore the profits to him. The plaintiff also alleged that he is au indigent pet son not having means sufficient to enable him to pay the courfee. At this stage only this question was adverted to by the trial court This petition to permit the plaintiff to sue in forma pauperis was cppced to by defendants 1 and 2 interalia alleging that in view of the pendene of O-S. No. 55/65 it was not competent to the 3rd defendant to alienage suit prepenies which were the subject matter of O.S. No. 55/65 and therfore the decree obtained by the plaintiff O S. 9/62 is inoperative end invalid, It was also denied that the assignment of the decree in favour of defendants 1 and 2 was a benami one. In short the contention is that defendents 1 and 2 did not held that property as trust in favour of the subse- quat purchaser. It was thus alleged that there is no cause of action for this suit. The other contention is that the plaintiff's wife owns a house in he name and therefore the planintiff cannot be said to be an indigent perse. It was alternatively contended that in O.S. 9/62 the very 3rd defendas deposited a suim of Rs. 3000/- as per the terms of the decree and that it said sum is lying to the credit of O.S. No. 9/62 and that this plaintiff vs entitled to withdraw that amount and if that amount is withdrawn, te plaintiff cannot be said to be an indigent person and that would enable im to pay the neceesary court fee in this case in a sum of Rs. 3526/-. It as also contended by the defendants that prima facie the claim for profits beyond three years is barred by limitation and therefore the trial court ought 3 have rejected the petition on the very face of it.