(YERRAMILLI) SATYANARAYANARAO Vs. (GUNA) VENKATASWAMY

JUDGEMENT

(1.) This second appeal is preferred by plaintiffs Nos. 2 to 5 as the legal representatives of the deceased first plaintiff. Defendant No. 1, now also deceased, mortgaged the suit property to defendant No. 11 who obtained a decree upon it in O.S. No. 484 of 1903. The property was brought to sale and was purchased by defendant No. 12, who is said to be a clerk of defendant No. 11 benami for his employer. That sale was confirmed on 4 November 1908 but no attempt was made to secure delivery through the court. On 21 July 1909 the first plaintiff took a sale deed of the suit property from defendants Nos. 11 and 12, and this was attested by defendant No. 1, the judgment-debtor. It is said that on the same occasion cowles were executed to defendant No. 4 who is a divided brother of defendant No. 1 and to defendants Nos. 9 and 10, sons of a brother of defendant No. 1's wife. There is a promissory note, Ex. E, filed in evidence said to have been executed by these lessees at the same time and place in respect of an advance of money for cultivation expenses. A few days later, on 4 August 1909, the plaintiff leased the property, under a registered lease deed, Ex. B. to these same lessees, for a term of five years. He brought the present suit because these lessees have repudiated his title and set up the adverse title of defendant No. 1 against it. The relief prayed for was either the recovery of the property or the return of the consideration paid by him to defendants Nos. 11 and 12.

(2.) The learned District Munsif who tried the case came to the conclusion that neither the first plaintiff nor his vendors ever had possession of the suit property, which had remained throughout with defendants Nos. 1 to 3. Accordingly he found that the suit to recover possession was barred by Section 47 Civil Procedure Code. He further found that these latter defendants had had possession adversely for more than the statutory period, so that if a suit had lain it would be barred by limitation. The learned Subordinate Judge who first heard the appeal from that decision agreed with the District Munsif on the question of possession and of the applicability of Section 47. He gave the plaintiff a decree for the refund of the purchase money. The case then came up in second appeal to this Court and the learned Judges who heard it found it necessary to remand it to the lower Appellate Court for a re-hearing of the first appeal. The grounds for adopting this course were two fold. In the first place it was found that the lower Appellate Court, in dealing with the question of transfer of possession, had neglected to consider the documents Exs. B, C, D, and E. In the second place exception was taken to the finding with regard to limitation. Upon a re-hearing by the lower Appellate Court the latter question has been decided in favour of the plaintiff. The learned Subordinate Judge's observations upon the former question are contained in paras. 7 and 10 of his judgment.

(3.) In para. 7 he mentions various considerations bearing upon the question of delivery bat records no explicit finding upon that point. He then goes on to consider the applicability of Section 47 as though he had finally disposed of the question of fact whether or not delivery had taken place because it cannot be contended that if delivery had taken place, Section 47 would have application. Later on, in para. 10he deals with the specific point which arises from the attestation of the sale deed by defendant No. 1, declining to draw any inference from that circumstance that defendant No. 1 had agreed to deliver possession of the land. It appears to me that the parts of the judgment which deal with this question are open to the criticism, firstly that no clear and definite finding is recorded whether at the time when Ex. A was executed there was in substance and in. fact a delivery of the property to the plaintiff, and secondly and this I think a more grave defect that the direction issued by this court, when the second appeal came on for hearing, that the four documents, Exs. B, C, D and E, should be taken into account in disposing of the question of delivery appears, to have received no attention whatever. The most that can be said is that there is an inconclusive allusion to Ex. B in para. 10 of the judgment. I must hold accordingly that my learned brother Devadoss, J's direction has substantially not been complied with.