(MANTRALA) YEGNANARAYANA Vs. VANKAMAMIDI YAGANNADHA RAO

JUDGEMENT

(1.) The plaintiff is the appellant. The facts that need be stated for deciding the questions arising in this second appeal, are briefly these: Defendant 1 had agreed in 1920 to sell some lands which he had in Chinnatummidi Agraharam to his brother VenkataTamayya, who was cultivating them, for Rs. 1,800. In the same year he executed an agreement, Ex. B,to sell the same lands to the plaintiff; and afterwards executed in his favour a sale deed, Ex. A, for Rs. 3,500. After the sale deed was executed defendant 1's brother Venkataramayya brought a suit, O.S. No. 23 of 1921, in the Court of the District Munsif of Gudivada for specific performance of the agreement to sell the lands in his favour to which defendant 1 and the plaintiff were made parties. Defendant 1 did not contest that litigation and it was carried on solely by the plaintiff. That suit was decreed in favour of Venkataramayya and the decree was confirmed in appeal also. In the suit, which has given rise to this second appeal, the plaintiff sued to recover the amount of consideration which he has paid to defendant 1 for Ex. A as well as the costs which he incurred in the Gudivada Court, viz., the costs which he had to incur himself in defending the suit and also the costs which he had to pay the plaintiff in that suit. He also asked for damages. The learned Subordinate Judge found that the agreement to sell in favour of the plaintiff was brought into existence during the trial of the suit in the District Munsif's Court of Gudivada, that only a sum of Rs. 1,600 was paid by the plaintiff to defendant 1 and that as he was a joint tortfeasor with defendant 1 he is not entitled to get either the costs or the damages which he has claimed. In the result, the plaintiff was given a decree only for Rs. 1,600 with interest.

(2.) Disregarding the issues relating to the minor points raised in the case, the important issues with reference to the findings in which arguments were addressed to me on behalf of the appellant are these: 1-a. Did the plaintiff purchase plaint property from defendants with knowledge of the prior agreement to sell in favour of defendant 1's brother Venkataramayya and with an undertaking to risk the consequences of the litigation, if any, with him (Venkataramayya) as alleged by defendants 1 and 2? 5-a. Is plaintiff entitled to claim from defendants 1 and 2 costs he had to incur and costs had had to pay Venkataramyya in the litigation referred to in the plaint; and if so, are the amounts shown in the plaint account correct? 7. Are plaintiff and defendant 1 joint tortfeasors as alleged by defendants; and if so, is not this suit maintainable by the plaintiff?

(3.) These issues were all found against the plaintiff. On these issues the findings of the learned Sub-Judge, generally stated, are that defendant 1 told the plaintiff of his agreement to sell the lands to his brother, that he knowing of this agreement prevailed upon defendant 1 to sell the lands to him at an enhanced price and that defendant 1 was tempted to sell the lands to the plaintiff as he was prepared to pay him a higher price and also to fight out the matter with his brother. The learned Judge also found that the plaintiff alone was responsible for the litigation in the Gudivada Court and that he was a wrongdoer. On issue 7 his finding is: I have no doubt that the plaintiff and defendant 1 colluded together and brought about the sale transaction with intent to defraud defendant 1's brother Venkataramayya.