(GANDREDDI) NAGANNA Vs. (REVINIPATI) APPALARAJU

JUDGEMENT

(1.) Defendant 1 was entitled to one-fourth of the suit lands, and he sold his one- fourth share to defendant 6 on 28 July 1900 for Rs. 500 (Ex. 1). The father of defendants 3 and 5 was entitled to one-fourth of the suit lands, and he sold the said one-fourth share to defendant 6 on 2 June, 1901 for Rs. 500 (Ex. 2). Defendant 1 executed a kadapa on 8 July 1903 to defendant 6 in respect of the lands so purchased by defendant 6. Defendant 6 sold to the plaintiff on 24 June 1917 (Ex. A) the half-share in the suit lands purchased by him under Exs. 1 and 2. The plaintiff sued to declare his title to a moiety of the plaint lands and to recover possession of the same after partition. Defendant 6 did not appear in the suit; the other defendants contended that the sale in favour of the plaintiff was a sham transaction, that when the properties were sold to defendant 6, defendant 6 agreed to re-convey the properties to the vendors on their repaying Rs. 500, the price mentioned in Exs. 1 and 2, that defendant 1 was in possession of the properties as a lessee from defendant 6 (Ex. 3, 1903); that defendant 1 paid defendant 6 Rs. 500 in March 1905, but as defendant 3 was not then ready with his money, defendant 6 promised to execute a sale deed in favour of defendant 1 but had delayed in doing so; that the suit was barred by limitation; and that the plaintiff was not entitled to any relief.

(2.) The trial Court found that Ex. A, the sale deed in favour of the plaintiffs, was a sham transaction. It also found that the defendants had acquired title by adverse possession, and dismissed the suit. On appeal by the plaintiff, the learned Additional Subordinate Judge of Vizagapatam found it unnecessary to go into the question of the sham nature of the sale deed to the plaintiff, since defendant 6 as P.W. 3 admitted execution of the sale deed to the plaintiff and also receipt of consideration for the same, and thought that the suit should be decided on the footing that the rights of defendant 6 passed to the plaintiff. As regards the contentions raised by defendant 3, the plaintiff and defendant 3 having settled matters between themselves the only question that remained was whether the plaintiff was entitled to possession of the one fourth-share of the lands claimed by defendant 1. The lower appellate Court found that defendant 1 had paid Rs. 500 to defendant 6 as agreed, and that Ex. 7 a letter executed by defendant 6 in favour of defendant 1 on 22 December, 1912, was genuine; but as no registered sale deed had been executed by defendant 6 in favour of the first, the Court held that defendant 1 could not resist the plaintiff's suit. The suit was accordingly decreed against defendant 1. Defendant 1 and his son defendant 2 have preferred the present second appeal.

(3.) Both the lower Courts have found that Ex. 7 is genuine and that Rs. 500 was paid by defendant 1 to defendant 3. Defendant 3 was in possession of one-fourth share in question as a lessee, at least, from 1903: see Ex. 3 executed by defendant 1 to defendant 6. On the date of Ex. 7 defendant 1 was in possession. Ex. 7 states as follows: You paid back to mo Rs. 500 being the sale amount of the absolute sale effected in my favour on 28 July 1900 in respect of the jirayeti lands known as Pallapupampulu and requested me to re-sell the same to you, and I have, out of grace, agreed to execute a sale deed in your favour. I shall execute a sale deed and give the same to you registered within one month from this day.