http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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