KURVATEPPA MAHALINGAPPA KURVATTI Vs. NINGAYYA CHNBASAYA PATRIMATH

JUDGEMENT

(1.) The facts relevant to this second appeal briefly-stated are as follows ;-One Chenmallaya was the original owner of four lands and a house. He died in 1910. One Basava was his daughter. She was married to one Murigeya. They had a son Chenbagaya who was adopted by Chenmallaya. The lands and the house were the property of Chenbasaya until his death on September 4, 1911. Chenbasaya left a widow Nagava. Nagava lived with Murigeya and Basava the natural parents of her deceased husband. They managed the property on her behalf. On March 23, 1912, Nagava executed a sale deed in favour of defendant No. 1 conveying to him the four lands and the house. Basava and Murigeya joined in the conveyance. The consideration mentioned in the sale deed was Rs. 1,500. It is found by both Courts that ah the date of the sale-deed Nagava was a minor. On November 13, 1921, the plaintiff was adopted by Nagava, and this suit was brought by him against defendant No. 1 the original purchaser, defendants Nos. 2 and 3 his sons, defendants Nos. 4, 5, and 6 the heirs of the deceased Murigeya and defendant No. 7 Basava. About two years after the purchase of the four lands and the house by him, defendant No. 1 sold the house and three out of the four lands to Murigeya for a consideration of Rs. 200. The trial Court decreed the plaintiff's claim to the possession of the house and four lands on his paying Rs. 640 to defendant No., 1. It also decreed mesne profits for two years prior to the suit.

(2.) The trial Court held that the lands were Devasthan Inam lands and as such inalienable. Two grounds of appeal were taken in. the lower appellate Court challenging this finding; but the pleader for the defendant-appellants does not seem to have urged them in the lower appellate Court. The lower appellate Court in its judgment has set out four grounds that were urged before it on behalf of the appellants, but none of them relate to this finding. Mr. Thakor on behalf of the appellants has contended that there is no finding by the lower appellate Court confirming the finding of the trial Court on this point and that if we are going to rely upon the finding of the trial Court we should remand the case to the lower appellate Court for its finding on the point. In our opinion if the appellants were challenging the finding of the trial Court before the lower appellate Court they should have urged the point before the lower appellate Court. As their pleader apparently did not urge the point before the lower appellate Court, it may be taken that they did not wish to challenge the finding of the trial Court on the point.

(3.) Defendants Nos. 1, 2 and 3 are the only appellants before us. The other defendants have not appealed against the decision of the lower Courts. The defendants who have not appealed are in possession of three lands and the house. The appellants are in possession of one land only.