PETITIONER:
E. MAHBOOB SAHEB
Vs.
RESPONDENT:
N. SUBBARAYAN CHOWDHARY & ORS.
DATE OF JUDGMENT18/12/1981
BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
MISRA, R.B. (J)
CITATION:
1982 AIR 679 1982 SCR (2) 238
1982 SCC (1) 180 1982 SCALE (1)157
ACT:
Second Appeal-When no question of law whatever was
agitated before the High Court, the High Court cannot
interfere in second appeal with the finding of fact entered
by the District Judge in first appeal-Civil Procedure Code,
section 100 scope of.
HEADNOTE:
In the insolvency proceedings half the property of one
Allabaksh was sold by the official Receiver to Moola
Narayanaswamy in 1939 and the other half to Narasimhulu in
1945. Subsequently Narasimhulu transferred his interest in
the property in favour of the daughter of Moola Naraynaswamy
for a consideration of Rs. 4,000 under Exh. A-1 dated May
10, 1948.
One Nagappa obtained a simple money decree against
Moola Narayanaswamy in O.S. 26/1952 on the file of Sub Judge
Anantapur and in execution thereof, he attached and bright
to sale in court auction two houses including the house
purchased by the daughter of Moola Nalayanaswamy. In the
said court auction, Nagappa purchased the two houses for a
sum of Rs. 2050 and in enforcement of the sale certificate,
he obtained delivery of possession of the two houses. Since
the application No. E.A. 90/58 filed by the daughter of
Narayanaswamy in the Executing Court under order XXI, Rule
100 C.P.C. asserting her independent right was dismissed,
she filed a suit to set aside the said summary order and for
recovery of possession of the property which is described in
her plaint ‘C’ Schedule as falling to her share arising out
of a partition effected in 1952.
During the pendency of the suit, Nagappa sold the
northern half of the property in favour of Mahboob Saheb,
the appellant herein, on March 21, 1961 and later, the
southern half of the property to N. Subbarayan Chowdhary,
respondent No. 1 herein, on June 19, 1961.
Nagappa contested the suit on the ground that
Narasimhulu was all along acting as a benamidar for
Narayanaswamy, when he purchased the half share in court
auction in 1944-45 and again transferred the said share in
favour of Narayanaswamy’s daughter benami for Narayanaswamy
and as such the sale by the court in his favour was valid.
The Trial Court disbelieved the plea of benami taken by
Nagappa, found that the plaintiff was the owner of a half
share in her own right, and that there was no partition by
metes and bounds of the entire property brought to sale, by
court auction. The Trial Court, therefore, set aside the
summary order passed in E.A. 90/58 in E.P. 7/56 in OS. 26/52
of the Sub Judge, Anantapur and a preliminary decree for
partition of the ‘B’ Scheduled property by metes and bounds
into the equal shares and for allotment and delivery of one
such share to the plaintiff.
239
Nagappa’s appeal before the District Court (A.S.
173/66) was dismissed and A the objections of the plaintiff
were allowed, and accepting the plea of partition the
District Court granted a decree for recovery of possession
of the plaint ‘C’ Schedule.
In further second appeals, the High Court dismissed
Nagappa’s appeal on the plea of benami but reversed the
findings of the District Court as to the question of
partition pleaded by the plaintiff. Allowing The appeal of
the 8th defendant (Respondent No. I herein) the High Court
held that it was a case where a partition of the property
should be effected between the plaintiff on the one hand and
the appellant and respondent No. 1 herein on the other.
Hence the appeal by special leave by 7th defendant Mahboob
Saheb.
Allowing the appeal and leaving the question relating
to the rights inter se as between appellant and respondent
No. 1 open, the Court
^
HELD: 1. It was not open to the High Court to
reappreciate the evidence and substitute its own conclusions
in place of those entered by the lower court, while
exercising the jurisdiction conferred by section 100 C.P.C.
The finding entered by the Additional District Judge that a
partition had taken place between the plaintiff and the
other legal heirs of Narayanaswamy in 1952, and as a result
thereof the southern portion of the ‘B’ Schedule property
(plaint ‘C’ Schedule property) had been allotted to the
plaintiff’s share was based on a detailed consideration of
the legal evidence available on the record. The relevant
portions of the evidence having a bearing on the plea of
partition make it clear that the finding entered by the
Additional District Judge cannot be said to be unreasonable
or perverse. No question of law whatever was agitated before
the High Court. In the circumstances, there was no
justification for the High Court to interfere with the
finding of fact entered by the Additional District Judge.
[244F; E, G-H ]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 854 of
1971.
Appeal by Special leave from the judgment and order
dated the 6th November, 1970 of the Andhra Pradesh High
Court in S.A. Nos. 719 and 826 of ]967
T. S. Krishnamoorti Iyer Mrs. J. Ramachandran and K.
Ram Kumar for the Appellant.
P. Govindan Nair and G. Narasimhulu for Respondent No.
1.
A. V. Rangam for Respondents 2(c) & (e).
B. Parthasarthi for Respondent No. 3.
The Judgment of the Court was delivered by
240
BALAKRISHNA ERADI, J. This appeal by special leave is
directed against a judgment of the High Court of Andhra
Pradesh in two connected Second Appeals-Second Appeal Nos.
719 and 826 of 1967. Those Second Appeals arose out of a
suit filed by the appellant herein for setting aside the
summary order passed in E.A. No. 90 of 1958 in E.P. 7 of
1956 in O.S. No. 26 of 1952 on the file of the Sub-Court,
Anantapur, and for recovery of possession of plaint ‘C’
Schedule property or, in the alternative, for partition and
recovery of one-half of the property described in the plaint
‘B’ Schedule. The plaint ‘C’ Schedule plot is a southern
portion of the property described in the ‘B’ Schedule.
The plaint ‘B’ Schedule property consisting of 1 acre
and 90 cents of land together with two houses situated
therein belonged to one Allabaksh. He was adjudged an
insolvent and the official Receiver sold a half right in the
said property to one Moola Narayanaswamy under Exh. A-3
dated December 6, 1939. The remaining half interest in the
property belonging to Allabakash was also subsequently
brought to sale by the official Receiver and one J.
Narasimhulu became the purchaser. Exh. A-27 dated January 5,
1945 is the sale certificate issued in his favour. The
resultant position was that the ‘B’ Schedule property came
to be owned in undivided half shares by Moola Narayanaswamy
and J. Narasimhulu. Subsequently, Narasimhulu transferred
his interest in the property in favour of the plaintiff for
a consideration of Rs. 4,000 under Exh. A-l dated May 10,
1948. The plaintiff is the daughter of Moola Narayanaswamy.
One Nagappa (first defendant) obtained a simple money
decree against Moola Narayanaswamy in O.S . 26152 on the
file of the Subordinate Judge’s Court, Anantapur, and in
execution thereof, he attached and brought to sale in court
auction the two houses described in the plaint ‘B Schedule
property. In the said court auction, the first defendant
purchased the plaint ‘B’ Schedule property for Rs. 2,050 and
in enforcement of the sale certificate, he obtained delivery
of possession of the two houses. Since the judgment-debtor,
Narayanaswamy, was entitled to only a half interest in the
property, the plaintiff filed E.A. No. 90/58 in the
Executing Court under order 21, Rule 100 C.P.C, asserting
her independent rights to the southern half of the property
and praying for redelivery of the said portion in her
favour. That petition was dismissed by the Sub-Court,
Anantapur, by order dated March 11, 1960, and hence. the
plaintiff brought the suit out of which this appeal has
241
arisen for setting aside the said summary order and for
recovery of possession of the southern portion of the
property which is described in the plaint ‘C’ Schedule.
During the pendency of the suit, the first defendant
sold the northern half of the property in favour of the 7th
defendant as per Exh. B-14 dated March 21, 1961. Later, the
first defendant transferred the southern half of the
property to the 8th defendant under the sale deed (Exh. B-
15) dated June 19, 1961.
Reference has been made to the fact that the two sales
effected by the official Receiver in favour of Narayanaswamy
and Narasimhulu were in respect of unspecified half shares
in the plaint ‘B’ Schedule property. The basis on which the
plaintiff rested her claim for recovery of possession of the
southern half of the property was that a partition had been
effected between herself and the heirs of Narayanaswamy in
1952 and the ‘C’ Schedule property had been allotted to her
share at the said partition. Defendants 2 to 6, who are the
legal heirs of deceased Narayanaswamy, did not contest the o
suit. However, the first defendant, who was the main
contesting defendant in the trial court, denied that any
such partition had taken place. Hf. put forward the case
that in effecting the purchase of the balance undivided half
interest in the property, when it was brought to sale by the
official Receiver on November 28, 1944, Narasimhulu was
acting as a benamidar for Moola Narayanaswamy and that the
ownership in respect of the said half interest also became
vested in Narayanaswamy himself. It was further contended
that the transfer by Narasimhulu in favour of the plaintiff
was also a benami transaction for the benefit of
Narayanaswamy and hence, the entire property I ad been
validly purchased by him at the court sale held in execution
of the money decree obtained by him against 1 Narayanaswamy
in O.S. 26 of 1952 of the Subordinate Court, Anantapur.
The two main issues that arose for determination by the
trial court (court of the Munsif Magistrate, Tadpatri) were
(a) whether the transactions of purchase of the half share
in the plaint ‘B’ Schedule property by Narasimhulu at the
court auction sale and the subsequent transfer of the same
by Narasimhulu to the plaintiff were benami for the benefit
of Narayanaswamy and (b) whether there was a subsequent
partition of the property at which the plaintiff was
allotted the southern half (plaint ‘C’ Schedule property).
On on a consideration of the evidence adduced in the case,
the trial court found that there was no, foundation whatever
for the plea of
242
benami put forward by the first defendant, that the
plaintiff was the owner of a half share in the plaint ‘B’
Schedule property and that her interest could in no way be
effected by the court sale held in execution of the money
decree obtained by the first defendant against
Narayanaswamy. The learned Munsif further held that the
plaintiff had not succeeded in establishing her case that
there had been a partition of the property by metes and
bounds, at which the southern half of the property, namely,
the plaint ‘C’ Schedule plot had been allotted to her share.
In view of the aforesaid findings, the trial court set aside
the summary order passed in E.A. 90/58 in E.P. 7/56 in O.S.
26/52 of the Subordinate Court, Anantapur, and passed a
preliminary decree for partition of the plaint ‘B’ Schedule
property by metes and bounds into two equal shares and for
allotment and delivery of one such share to the plaintiff.
The first defendant carried the matter in appeal before
the District Court, Anantapur (A.S. 173/56) reiterating his
contention that the purchase of the half interest in the
plaint ’B' Schedule property by Narasimhulu and the
subsequent sale by him to the plaintiff were benami
transactions. The plaintiff filed a memorandum of cross.
Objections questioning the correctness of the finding
entered against by the Munsif that the plea of partition put
forward by her had not been proved and praying that in place
of decree for partition granted to her by the Munsif, she
may be allowed to recover possession of the plaint ‘C’
Schedule property after upholding her prayer regarding the
partition.
After a detailed consideration of the oral and
documentary evidence adduced in the case, the learned
Additional District Judge, who heard the appeal, upheld the
finding of the trial court that the first defendant had
totally failed to establish the case put forward by him that
the auction purchase effected by Narasimhulu and the
subsequent transfer of the property by Narasimhulu to the
plaintiff were both benami transactions intended for the
benefit of Moola Narayanaswamy. It was further held by the
learned Additional District Judge that subsequent to the
purchase of the half interest in the ‘B’ Schedule property
by the plaintiff, there had been a partition between her and
the other heirs of Narayanaswamy in 1952, as pleaded by the
plaintiff, and the plaint ‘C’ Schedule property had been
allotted to the plaintiff’s share at that partition. In the
light of the aforesaid findings, the appeal filed by the
first defendant was dismissed by the learned Additional
District Judge, the cross-objections filed by the plaintiff
were allowed and in modi-
243
fication of the decree of the trial court, the plaintiff was
granted a decree for recovery of possession of the plaint
‘C’ Schedule property.
Against the aforesaid judgment of the Additional
District Judge, Anantapur, the first defendant and the 8th
defendant filed two separate Second Appeals before the High
Court of Andhra Pradesh. The two questions raised in those
appeals were (a) whether the purchase of the property by the
plaintiff was benami for Narayanaswamy and (b) whether a
partition of the plaint ‘B Schedule property had taken place
as between the plaintiff and the heirs of Narayanaswamy, at
which the plaintiff got the southern half thereof.
A learned Single Judge of the High Court disposed of
the two Second Appeals by a common judgment, wherein he has
discussed at great length the oral and documentary evidence
and entered findings of his own on the two questions
aforementioned. The learned Judge found that there was no
force in the contention put forward by the first defendant
that the half interest in plaint ‘B’ Schedule property was
purchased at the court auction sale by Narasimhulu benami
for Narayanaswamy. He also rejected the further plea put
forward by the first defendant that the subsequent transfer
of the property by Narasimhulu to the plaintiff was also a
benami transaction. In consequence, the Second Appeal filed
by the first defendant was dismissed,
On the second question aforesaid, the learned Judge
differed from the finding of the Additional District Judge
and held that the plaintiff had failed to establish that a
partition of the property had been effected as between
herself and the legal heirs of Narayanaswamy at which the
‘C’ Schedule property had been allotted to her share. The
learned Judge then proceeded to hold that the fact that the
first defendant sold to the 7th defendant a specified
portion in the north did not necessarily create any right in
the 7th defendant to the particular properly and hence this
was a case where a partition of the property should be
effected between the plaintiff on the one hand and the
defendants 7th and 8th on the C’ other. In view of the said
findings, the Second Appeal filed by the 8th defendant was
allowed by the learned Judge and the suit was remanded to
the trial court for effecting a partition of the plaint ‘B’
Schedule property between the plaintiff, the 7th defendant
and the 8th defendant. It is against the said decision of
the High Court that the 7th defendant has filed this appeal
after obtaining special leave from this Court.
244
Two main contentions were advanced by the learned
counsel on behalf of the appellant. Firstly, it was urged
that the High Court has acted illegally and in clear
violation of the limitations imposed by Section 100 C.P.C.
in interfering with the finding entered by the Additional
District Judge on the question as to whether or not there
had been a partition between certain parties which is a pure
question of fact. The second contention advanced on behalf
of the appellant is that the High Court has committed a
grievous error in omitting to notice that the 7th defendant
had not been even impleaded as a party in the Second Appeal
(S.A. 826/67) filed by the 8th defendant, and that while
showing the plaintiff as the sole respondent in that Second
Appeal a categorical statement had been made in the
memorandum of the Second Appeal that “the other parties in
the courts below are not necessary parties to this appeal”.
It was, therefore, contended by the appellant that the High
Court has acted wholly illegally in recording a finding
adverse to the 7th defendant and directing a partition of
the entire ‘B’ Schedule. property in spite of the fact that
the northern plot had been sold to the 7th defendant by
deceased Narayanaswamy.
After hearing counsel appearing on both sides, we have
unhesitatingly come to the conclusion that both the
aforesaid contentions advanced on behalf of the appellant
have to be upheld. The finding entered by the Additional
District Judge that a partition had taken place between the
plaintiff and the other legal heirs of Narayanaswamy in
1952, and as a result thereof the southern portion of the
‘B’ Schedule property (plaint ’C’ Schedule property) had
been allotted to the plaintiff’s share was based on a
detailed consideration of the legal evidence available on
the record. It was not open to the High Court to
reappreciate the said evidence and substitute its own
conclusions in place of those entered by the lower courts
while exercising the jurisdiction conferred by Section 100
C.P.C. The learned counsel appearing on both sides have
taken us through the relevant portions of the evidence
having a bearing on the plea of partition, and we are
satisfied that the finding entered by the Additional
District Judge cannot be said to be unreasonable or
perverse. No question of law whatever was agitated before
the High Court. In the circumstances, there was no
justification at all for the High Court to interfere with
the finding of fact entered by the Additional District Judge
that there had been a partition between the plaintiff and
the legal heirs of Narayanaswamy in 1952 at which the plaint
‘C’ Schedule property had been allotted to the share of the
plaintiff.
245
In this view, it is unnecessary for us to go into the
merits of the second contention advanced on behalf of the
appellant.
In the light of the foregoing discussion, we allow this
appeal, set aside the decision of the High Court and restore
the judgment and decree of the Additional District Judge,
permitting the plaintiff to recover possession of the plaint
‘C’ Schedule property. We make it clear that we are
expressing no opinion on the question relating to the rights
inter se as between the defendants 7th and 8th in respect of
the remaining portion of plaint ‘B’ Schedule property, and
the said matter is left to open. The parties will bear the
respective costs in this appeal.
S.R. Appeal allowed.
246