NIMMAGADDA VENKATESWARLU Vs. BODAPATI LINGAYYA

JUDGEMENT

(1.) The first defendant is the appellant. The plaintiff is a lessee from the first defendant under a cowle (Exhibit F), dated the 29 day of February 1916. The document is a lease for 11 years of the immovable property in dispute which it is alleged fell to the share of the first defendant in pursuance of a partition entered into in the year 1898. The first defendant's father became an insolvent and the Official Receiver sold the property and the second defendant purchased the same. As the partition was long before the insolvency, it is contended that the sale by the Official Receiver passed no property to the second defendant. Both the District Munsif and the Subordinate Judge held against the alleged partition and dismissed the plaintiff's suit.

(2.) The present second appeal is not by the plaintiff but by the first defendant, and a preliminary objection is taken that, as both the lower Courts dismissed the plaintiff's suit with costs against the first defendant, the second appeal by him is not competent, as there can be no appeal against a mere finding. Reference has been made to Ram Doss Lushkur V/s. Hureehur Mookerjee (1875) 23 W.R. 86 Venkatasuryanarayana V/s. Sivasankara Narayana (1915) 17 M.L.T. 85 Naganna v. Venkata Krishnamma (1896) 6 M.L.J. 86 Nand Lal Pal V/s. Naresh Chander Deb (1917) 41 I.C. 468, Muthu Pillai V/s. Veda Vysa Chariar (1921) 60 I.C. 397 Byomkes V/s. Bhut Nath (1921) 34 C.L.J. 489 and Secretary of State V/s. Saminatha Kownden (1914) I.L.R. 37 Mad. 25.

(3.) For the appellant it is contended that the first defendant being a lessor and his title being in dispute, the decree, though it nominally dismissed the suit of the lessee, dismissed it on the ground that the first defendant the lessor had no title, that, as between the first and the other defendants, the question at issue was whether the first defendant had any title to the property, that the matter would be res judicata between co-defendants and that consequently the first defendant is entitled to appeal. Reference is made to Krishna Chandra Goldar V/s. Mohesh Chandra Saha (1905) 9 .W.N 584 Yusuf Sahib V/s. Durgi (1907) I.L.R. 30 Mad. 447 and Nagalla Kotayya V/s. Nagalla Mallayya (1910) M.W.N 719.