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 SA Nos 719 and 826 of 967 T section 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 2c  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 EA No 90 of 1958 in EP 7 of 1956 in OS 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
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 4000 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 OS 
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 2050 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 EA No 9058 in the Executing Court under order 21 Rule 100 CPC 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
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 OS 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 EA 9058 in EP 756 in OS 2652 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 AS 17356 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 CPC 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 SA 82667 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 CPC
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
SR Appeal allowed


Summary:
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 4000 under Exh
A 1 dated May 10 1948
One Nagappa obtained a simple money decree against Moola Narayanaswamy in OS 261952 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 EA 9058 filed by the daughter of Narayanaswamy in the Executing Court under order XXI Rule 100 CPC 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 EA 9058 in EP 756 in OS
2652 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 AS 17366 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 CPC
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