BALAYYA Vs. NANDLAL

JUDGEMENT

(1.) THIS appeal is by the plaintiff who lost his suit in the Courts below. He sued on foot of a registered sale-deed, dated 30th March 1922, executed in his favour by three brothers, Rajlingu, Piraji and Balu, in respect of the fields in suit fora consideration of Rs. 3,000, The possession of the fields was actually transferred to the purchaser who then sublet them to the vendor Rajlingu for the year 1922-23 under a bataipatra, dated 17th April 1922. It appears he was allowed to hold over on the same terms after the expiry of the terms of the bati contract. While the plaintiff was in possession defendant Nandlal sued Piraji and obtained a decree, on 31st March 1922, and in due course attached the fields in suit. Plaintiff preferred an objection, but the same was disallowed by holding the sale to be fraudulent; and the attachment was maintained as regards Piraji's one-third share and withdrawn as regards the remaining two-third shares of Rajlingu and Balu. The plaintiff therefore sued to set aside the summary decision passed in Civil Suit No. 194 of 1921 on the file of Munsif, Basim. The defendant alleged that the sale was fraudulent and the lease was bogus and intended to give colour to the transaction of sale. The first Court found the sale proved and held that it was for valuable consideration and not fraudulent. It accordingly decreed the claim. The decree-holder defendant, therefore, appealed to the Additional District Judge's Court.

(2.) THE learned Additional District Judge notes that the execution of the sale was not disputed before him. So the only ground of attack was the so-called fraudulent nature of the transaction. Of course the plaintiff, being unsuccessful in the claim proceedings, had the burden of proving the reality and good faith of the transaction.. The vendee, and one of the vendors Rajlingu, and one of the creditors Mt. Munna, have been put in the witness-box. One more witness, Rajanna, has been, examined to prove that Rajlingu was separate from his other brother Piraji. The plaintiff's relationship has been relied on as one of the circumstances tending to prove the fraudulent nature of the transaction of sale.

(3.) THERE is no independent evidence to prove the payment of Rs. 50 and the existence of the prior debt of Rs. 275, and the payment of Rs. 424 to Rodba as per Ex. P-4. Thus Rs. 749 disappeared as unproved. As regards the fourth item of Rs. 725 the lower appellate Court held that though the creditor Munna was examined to prove the genuineness of receipt Ex. P-5, there was no satisfactory and convincing evidence to prove the existence of the debt. The lower appellate Court thus held the consideration of the sale to the extent of Rs. 1,474 unproved. This left a balance of Rs. 1,526. With regard to this item the Court of appeal entertained suspicion in view of the repayment of Rs. 531, said to have been made towards the debt by Rajlingu. According to plaintiff the money was supplied by him, but the payment was made by Rajlingu's hand. But in this he was contradicted by the mortgagee who denied all knowledge of the plaintiff's sale. In short the story of the havala was held to be sham. He thus concluded, that excepting the mortgage there was no proof of other debts, and even as to the mortgage there was no proof of havala. As regards the possession of the property he found that there was no satisfactory evidence to prove that possession was in fact transferred to plaintiff.