BALIJEPALLI RAMALINGAREDDI Vs. AMUDALA RAMANAMMA

JUDGEMENT

(1.) The second respondent in this appeal executed an agreement 6th March, 1958 in favour of the third respondent, whereby he agreed to sell an undivided extent of Acre 11-50 cents out of a total extent of Acre 43-18 cents which he had purchased in Gouit auction in execution of a decree in O.S. No. 105/47, District Munsif Court, Ongole. On I4th July, 1958 he executed a sale-deed in favour of the appellant of an undivided extent of Acre 21-59 cents out of the total extent of Acres 43-18 cents for a sum of four thousand rupees. On the same day he executed a another sale-deed in favour of the first respondent of an undivided extent of Acre 10-79 cents out of the total extent of Acre 43-18 cents. It turned out subsequently that the judgment-debtor in O.S. No. 105/47, District Munsif Court, Ongole, had no title to items 6, 10 and 11 and therefore the second respondent had no right to convey these items, the total extent of which is Acre 6-30 cents. The third respondent filed O.S. No. 60 of 1959, District Munsif Court, Ongole, against the second respondent for specific performance of the agreement of sale in his favour and as the vendor had no title to items 6, 10 and 11 of the extent of Ac. 6-30 cents, he prayed that a sale-deed may be executed in his favour in respect of Acre 11-50 cents of the land out of the total extent excluding items 6, 10 and 11.

(2.) The appellants herein were defendants 2 to 4 in that suit and the first respondent herein was the 5th defendant. The appellants filed O.S. No. 93/59, District Munsiff Court, Ongole for partition and separate possession of the extent of Acre 21-59 cents which they had purchased under a sale-deed dated I4th July, 1958. Both the suits were heard together. After considering the several contentions raised by the parties, the learned District Munsif decreed the suit for specific performance as prayed for. As the vendor had no title to items 6, 10 and 11 of the extent of Acre 6-30 cents, and as only Acre 25-38 cents remained after excluding Acre 11-50 cents which was the subject matter of the suit for specific performance, the learned District Munsif found that the appellants herein or the first respondent would not be in a position to get Acre 21-59 cents and Acre 10-79 cents as per their sale-deeds and the extents had to be reduced proportionately. He, therefore held that the appellants would be entitled to partition and separate possession of Acre 16-92 cents and the first respondent would be entitled to partition and separate possession of Acre 8-45 cents.

(3.) The second respondent preferred A.S. No. 118/60 before the Sub-Court, Ongole, as against the decree for specific performance in O.S. No. 60/59. The appellants herein preferred an appeal, A.S. No. 119/60 as against the decree in O.S. No. 93/59 contending that they are entitled to partition and separate possession of the entire extent of Acre 21-59 cents conveyed to them under the sale deed in their favour. Both the appeals were heard together. The appellate Court agreed with the decision of the trial Court and dismissed the appeals with costs. No appeal has been preferred against the judgment and decree in A.S. No. 118/60 confirming the decree for specific performance. The appellants, however, have preferred this second appeal as against the decision in A.S. No. 119/60. Mr. Bapi Raju very properly did not question the various concurrent findings of fact of the Courts below. He, however, contended that in granting a decree for partition and for separae possession for only Acre 16-92 instead of Acre 29-59 cents which was sold to the appellants, the Courts below in effect varied the contract between the parties. He contended that the Courts could not make a new bargain "between the parties and therefore, the decision of the Courts below is contrary to law. Mr. Gopalrao for the learned Advocate for the respondens raised a preliminary objection that inasmuch as the decision of the lower appellate Court in A.S. No. 118/60 had not been appealed against, the decree in the suit for specific performance had become final and would operate as res judicata and any variation of the decree of the Courts below consequent upon accepting the contention of the appellants would affect the result of that decision. He, therefore, urged that this Court cannot interfere in second appeal with the decision in A.S. No. 119/60 so as to affect the finality of the decision in A.S. No. 118/60.