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Nagam Siva Reddy Vs. B. NazamuddIn Saheb - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 160 of 1962
Judge
Reported inAIR1966AP373
ActsSpecific Relief Act, 1877 - Sections 54; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 63 - Order 41, Rule 31
AppellantNagam Siva Reddy
RespondentB. NazamuddIn Saheb
Appellant AdvocateR. Ramalinga Reddy, Adv.
Respondent AdvocateP. Krishna Reddy, Adv. for ;R.V. Subba Rao, Adv.
Disposition Appeal dismissed
Excerpt:
.....to take possession of property through court - plaintiff (heirs of x) were in actual possession of property - plaintiff filed suit for permanent injunction to restrain defendant from entering into property - whether suit for permanent injunction incompetent against defendant - held, suit for permanent injunction was proper remedy. - - but this attempt failed because the plaintiff (who is the respondent herein) and other co-owners obstructed delivery of possession to the appellant. b-i the amin's report, is false and unreliable. i am therefore satisfied that the remedy sought by the plaintiff respondent by way of an injunction against the defendant appellant is an appropriate remedy in a case like the present. indeed, the lower appellate court has clearly stated that the appellant..........contention overlooks the glaring fact that the defendant all along took up the attitude that the suit property was not an undivided property held by a number of co-owners, but that it was the exclusive property which one of the erst while co-owners obtained in a partition with the other co-owners. it is on this basis that the property was attached and brought to sale in execution of the decree obtained by the appellant in o. s. no. 266 of 54. it was, again, on this footing that the appellant purchased the property at the court sale. the subsequent attempts of the appellants to obtain actual, physical possession of the plaint property was also consistenl only with this position adopted by him, viz., that it was the separate and exclusive property of his judgment debtors. in these.....
Judgment:

Gopalakrishnan Nair, J.

1. This Second appeal is directed against the judgment of the Additional District Judge, Kurnool who on appeal, confirmed thedecree-passed by the District Munsif, Kurnool in O. S. No. 163 of 1957. The salient facts leading up to the Second appeal are succinctly as follows :

The suit land and some other lands belonged to one Khaja Saheb. He died leaving behind 8 sons 2 daughters and his widow. One of the sons who survived him was Hamid Miyah. The appellant before me, who was the defendant in the trial Court, instituted a suit, O. S. No. 266 of 1954, on the file of the District Munsif, Kurnool, for recovery of a loan which had been advanced to the said Hamid Miyah. At the time the suit was instituted, Hamid Miyah who borrowed the money from the appellant herein, was dead and therefore, the legal heirs of Hamid Miyah were sued for the amount which was due to the appellant from Hamid Miyah. A decree was duly obtained by the appellant. In execution, he attached and brought to sale the property described in the plaint schedule as though it was a separate and exclusive property of deceased Hamid Miyah which had devolved on his heirs. At the execution sale the appellant himself purchased the property. Thereafter he hied to take possession of the property through Court. But this attempt failed because the plaintiff (who is the respondent herein) and other co-owners obstructed delivery of possession to the appellant. The Amin who was entrusted with the process of the Court to effect delivery to the appellant reported that the property was in the actual possession of the respondent and his co-owners. This, however, did not discourage the appellant from pursuing the matter. He took steps later to the same end and obtained a report, Ex. B-l, from the Amin stating that the property was actually delivered to the appellant. The plaintiff as a person in actual possession of the property along with other undivided properties instituted the present suit for a permanent injunction to restrain the appellant from enter-Ing upon the property and interfering with the possession of the plaintiff and his co-owners.

2. The suit was resisted by the defendant mainly on the ground that he became the exclusive owner of the plaint property under the Sale Certificate obtained by him in exccution of the decree in O. S. No. 266 of 1954, and also by obtaining possession in execution of the sale Certificate, as evidenced by Ex. B-l.

3. The two questions that arose for consideration before the Courts below were (1) whether there was a partition between deceased Hamid Miyah and his brothers, sisters and mother, who were all co-owners of the properties left behind by Khaja Saheb: and (2) whether the appellant really obtained actual delivery of possession of the plaint property under Ex. B.I.

4. The learned District Munsil who tried the suit, in a considered judgment, came to the conclusion that there was no partition between Hamid Miyah and his co-owners, and that the judgment debtors in O. S. No. 266 of 1954 did not have exclusive title to or separate possession of the plaint property because they were only co-owners with several others who were their paternal uncles and paternal aunts. Regarding the delivery of possession of the plaint property to the appellant, the trial Court found that Ex. B-I the Amin's Report, is false and unreliable. and that no delivery was really made to the appellant.

5. The defendant carried the matter in appeal to the District Judge, Kurnool. The District Judge, in a brief judgment, concurred with the findings and conclusion of the trial Court. The defendant has, therefore, come to this Court by way of second appeal,

6. Mr. Ramalinga Reddy for the appellant has firstly raised the contention that as the appellant is a co-owner along with the other heirs of deceased Khaja Saheb, a suit for injunction against him must be held to be incompetent. This contention overlooks the glaring fact that the defendant all along took up the attitude that the suit property was not an undivided property held by a number of co-owners, but that it was the exclusive property which one of the erst while co-owners obtained in a partition with the other co-owners. It is on this basis that the property was attached and brought to sale in execution of the decree obtained by the appellant in O. S. No. 266 of 54. It was, again, on this footing that the appellant purchased the property at the Court sale. The subsequent attempts of the appellants to obtain actual, physical possession of the plaint property was also consistenl only with this position adopted by him, viz., that it was the separate and exclusive property of his judgment debtors. In these circumstances, if was open to the plaintiff as one of the co-owners in actual possession of the properties, including the plaint property, to ask for an injunction against the appellant to restrain him from taking possession of the suit property on the basis that it belonged to him exclusively. I do not see what other remedy for the plaintiff, or any other co-owner for that matter, should have sought in the circumstances of this case. But for this suit the appellant would surely have entered into actual possession and enjoyment of the plaint property and thereby invaded the right and possession of the other co-owners. I am therefore satisfied that the remedy sought by the plaintiff respondent by way of an injunction against the defendant appellant is an appropriate remedy in a case like the present.

By way of abundant caution I would however say that the decree granted to the plaintiff in this litigation will not, in any way derogate from the rights of the appellant defendant as a co-owner. Indeed, the lower appellate Court has clearly stated that the appellant may institute a suit for partition in his capacity as a co-owner. Therefore, it is idle to urge that the appellant's right as a co-owner is, in any manner, impaired by the decree passed, which I am now going to confirm in this second appeal. The permanent injunction against The appellant will be only to restrain him from claiming that the plaint property exclusively belonged to him and from taking action to obtain exclusive possession and enjoyment of the plaint property on the basis of the sale Certificate obtained by him in O. S. No. 266 of 1954, and the delivery account, Ex. B. 1.

7. The other contention put forward by the learned counsel is that the judgment of the lowerappellate Court was too brief and did not satisfy the requirements of a 'judgment' enumerated in Order 41, Rule 31, C. P. C. But this argument overlooks the important fact that the lower appellate Court only confirmed the judgment of the trial Court. In a confirming judgment unlike in a judgment which reverses, it is not necessary to into every fact and every piece of evidence at length and adduce all the reasons for the conclusion. This position is amply supported by authorities. For instance, in Vati Venkataswami v. Gannabathulla Venkataswami, : AIR1954Mad9 the lower appellate judge in confirming the decree of the trial Court referred to the paragraphs where the trial Court had discussed the merits of the case and given good reasons in support of its conclusion, and said that he agreed with those reasons and conclusions. An argument similar to that now advanced on behalf of the present appellant was raised before Satyanarayana Rao, J. of the Madras High Court who observed as follows:

'The learned appellate Judge instead of discussing each point separately and recording his finding, has merely adopted the easier method of stating that he agrees with the conclusions of the learned subordinate Judge contained in paras 13 to 19. This sort of disposal, no doubt, is not very satisfactory but on that ground I am not inclined to reverse the decision of the lower appellate Court as it is an affirming judgment.'

It is not necessary to cite other authorities, though there are almost legion. In the instant ease, I am by no means satisfied that the District Judge who disposed of the appeal did not apply his mind to the merits of the appeal. He pronounced a rather brief Judgment and did not elaborately go into the details of the case or marshal the entire evidence and stale all the reasons to support his conclusion. Instead, he chose to refer briefly In the reasoning and conclusion of the trial Court and express his agreement with them. He also referred to the important aspects of the evidence in the case, though not to every bit of evidence. I do not think it is legally correct to say that this judgment of the lower appellate Court must be set aside merely because of its aforesaid features. This contention of Mr. Ramalinga Reddy also fails.

8. No other contention has been put forwardbefore me and the contentions advanced havebeen found against. The second appeal, falls andis dismissed with costs. Leave refused'


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