YELLAMARAJU VENKATASUBBA RAO Vs. GOTETI VIGNESWARADU (DEAD)

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff to recover possession of the lands claimed in the plaint and mesne profits. The case for the plaintiff is that he purchased the lands on the 20 of July, 1913 for Rs. 40,000, that, out of this sum, Rs. 12,000 was paid to discharge a debt due by his vendor and the balance of Rs. 28,000 was applied towards setting aside a sale held in execution of the decree in O.S. No. 500 of 1912 against the 1 defendant, that the amount was deposited in Court on the 21 of July, 1913 and the sale was set aside under the orders of the Court on the 19 of August, 1913, that, after the setting aside of the sale, the 1 defendant who had obtained another decree against the plaintiff's vendor attached the property in execution of his decree in O.S. No. 1075 of 1912, that a claim was preferred by the plaintiff which was dismissed on the 12 of January, 1914 and that on the dismissal of the claim the 1 defendant purchased the properties in the plaint on the 12 of January, 1914 in furtherance of the attachment of the 21 of August, 1913 and took possession of the same through Court in June, 1914 and has been in possession and enjoyment ever since. The plaintiff, on his claim being dismissed, filed O.S. No. 1243 of 1914 to establish his right to the properties in dispute and the suit was finally decreed in his favour on the 1 of November, 1920. He, therefore, claims possession of the properties on the ground that his right having been established the attachment and sale under which the 1st defendant claims are invalid and the 1 defendant has no title to the properties.

(2.) Defendants 2 to 4 are impleaded as being lessees in actual possession of the lands.

(3.) The 1 defendant filed a written statement raising various defences, but it is only necessary to consider some of them in this appeal. The first ground is that the plaintiff ought in his former suit (O.S. No. 1243 of 1914) to have claimed possession of the properties and not to have confined himself to a bare declaration as on. the date of that suit he was out of possession and that the present claim for possession is barred under Order 2, Rule 2, Civil Procedure Code. The next contention is that the sale to the plaintiff was without consideration and was intended to defeat and delay the creditors and therefore passed no title to the plaintiff. The third contention is that the proceedings in O.S. No. 1243 of 1914 did not preclude the defendant from raising the objection as to the validity of the sale, as that decision was by the District Munsif's Court which had no pecuniary jurisdiction to try the question raised in the present suit, Section 11, Civil Procedure Code, therefore not applying to the case.