BADVEL CHINNA ASETHU Vs. VATTIPALLI KESAVAYYA

JUDGEMENT

(1.) It is not necessary in dealing with the Second Appeal to state the history of this litigation as it has been set out in the previous judgment of the learned Judge against whose decree this appeal has been preferred. Two questions have been argued before us. The first which relates to the merits is this : whether the finding of the Lower Court that the defendants 2 and 3, the appellants before us, had any notice as to Narasayya s title to the property. It appears that the property stood in the name of the plaintiff and Narasayya. The case of the plaintiff is that Narasayya had no title inasmuch as he had not paid his share of the consideration money which he was to have paid. We must take it as found in a previous judgment in the course of this litigation that Narasayya had in fact no title although his name stood in the title deeds. The High Court in its previous order of remand had remitted two issues for trial. One was "Had the defendants 2 and 3 notice of plaintiff s claim to the entire suit property prior to the ransfer in their favour?" (2) Did they act in good faith and take reasonable care to ascertain whether defendants had power to make the transfer within the meaning of Section 41 of the Transfer of Property Act?

(2.) The first question has been answered by both the courts in the negative and there can be no doubt rightly so.

(3.) The answer to the second question is what we are now asked to consider in this second appeal. The learned District Judge says that although the defendants 2 and 3 had no express notice of the plaintiff s claim to the entire property, yet the fact that for several years before the transfer the plaintiff claimed and received rent for the entire property from the defendants themselves was sufficient to call upon the defendants to enquire as to how, the plaintiff claimed the entire rent. The learned Judge states his conclusion in these words; "The defendants 2 and 3 made no enquiries at all and there seems to be considerable ground for the theory that defendants 2 and 3 wanted to annoy plaintiff in connection with the dispute about a house." Thus the appellants failed to make any bona fide enquiry into the matter and in second Appeal it is difficult to hold that the Lower Court had not sufficient materials on which to come to this conclusion. In fact no attempt has been made by the learned pleader for the appellant to satisfy us that there was really no evidence to justify the conclusion.