KUPPUSWAMI CHETTY Vs. SAMUDRA VIJIA NAINAR

JUDGEMENT

(1.) The plaintiff's case was that he purchased the plaint house at a court sale for Rs. 360, benami in the name of the defendants. He sued to recover possession from the defendant or, in the alternative, for the purchase-money paid by him for the house. The District Munsif gave the plaintiff a decree for possession. On appeal, the District Judge held that the plaintiff's suit for possession was barred by Section 317, C.P.C. He found, however, that the purchase- money had been paid by the plaintiff and gave him a decree for Rs. 360. In second appeal by the defendant it is contended that he should not have granted the alternative felief inasmuch as the plaintiff did not put in any memorandum of objections under Section 561, C.P.C. In support of this contention Kuluikada, Pillai V/s. Viswanatha Pillai (1904) I.L.R. 28 M. 229 is cited.

(2.) I am of opinion that the decree of the District Judge is right. The primary or major relief asked for. by the plaintiff was delivery of the property. Having obtained this relief in the fifst Court he had no ground for appealing and therefore no ground for putting in a memorandum of objections under Section 561, C.P.C. The District Judge found that the plaintiff was not entitled to the major relief granted him by the District Munsif. There was nothing my opinion, to prevent him from giving a decree for. the minor relief on finding that the plaintiff was entitled to it. The case would have been different if the District Munsif had refused the prayer for possession and had given a decree for the purchase-money. Had the defendant then appealed, the plaintiff, if he wished to have the decree altered to one for possession, would have been bound to put in a memorandum of objections regarding the refusal of his prayer for possession; for the rejection of that, his major prayer, gave him good ground for. appealing.

(3.) The case Kulaikada Pillai V/s. Viswanatha Pillai (1904) I.L.R. 28 M. 229 is clearly distinguishable. In that case the plaintiff claiming, title linger a sale from the 3 defendant who was a vendee from the widow of a brother of the 1 and 2nd defendants sued all these defendants for possession and in the alternative for return by the 3 defendant of the purchase-money. The District. Munsif held that the claim for possession was barred by the adverse possession of the 1 and 2nd defendants, and gave a decree for the purchase money against the 3 defendant. The 3 defendant appealed, making defendants Nos. 1 and 2 and the plaintiff, respondents. The Subordinate Judge found that there was no bar by the adverse possession on the part of the defendants Nos. 1 and 2 and, although the plaintiff had put in no memorandum of objections, dismissed the suit for purchase-money against the 3 defendant, and gave the plaintiff a decree for possession. The 1 and 2nd defendants then appealed to the High Court objecting to the reversal of the decree of the District Munsif, so far as it was in their favour. From the above it is clear that the plaintiff could have objected in appeal to the decree of the District Munsif in-as much as it refused him the major relief he had claimed, namely, possession. He was, therefore, bound if he wanted to obtain that relief in the appeal filed by the 3 defendant to put in a memorandum of objections I, therefore, dismiss this second appeal with costs. Abdur Rahim, J.