KARNAM NARAYANAPPA Vs. TANGATUR SUBBIAH

JUDGEMENT

(1.) BOTH the lower Courts have found that the lands sought to be recovered were in reality mortgaged to Ramayya and that Vencatasubbaya purchased them in Court auction, and subsequently sold them to 2nd defendant, who, in his turn, sold them to the plaintiff. The lands intended to be mortgaged and sold were the plaint lands, though the description in the mortgage and sale-certificate and in the subsequent conveyances was defective or incorrect. As between the parties, therefore, to the mortgage and sale items, it was held that the title passed to the plaintiff, the vendee.

(2.) IT is argued in second appeal that, howsoever that might be, the 3rd and 4th defendants, who are the subsequent purchasers, are entitled to bind the plaintiff to the description contained in his title-deeds and that the plaintiff cannot claim against there anything that is not really comprised in those documents. I am of opinion that this argument should not prevail. The mortgagor himself could not set up the misdescription against the plaintiff contrary to what has been found to be the real intention of the parties both to the mortgage and to the subsequent purchases. The 3rd and 4th defendants could only acquire the title which their vendor, the original mortgagor, had at the time of the sale, unless it be on equitable grounds which will not be open to their vendor. The ground urged in this case is that they are bona fide purchasers for value whose right must be regarded as superior to that of the plaintiff holding under defective instruments; but no such equity appears to have been set up in the lower Courts. I do not see that any issue was framed on the question whether the lands claimed were not in reality included in the plaintiff s title-deeds. This is not a plea that they were entitled to preferential treatment on the ground of any equity which their vendor could not claim. I am of opinion that, except by proving a special equity in their own favour, they could not displace the plaintiff s title and they did not attempt to do so in the lower Court; and as the question is one that involves an investigation of facts, I must hold that this Court should not interfere in second appeal. I reject this second appeal.