Case: E. Mahboob Saheb Vs. N. Subbarayan Chowdhary and Others

Schedule property by the plaintiff, there had been a partition between her and the other heirs of Narayanaswamy in 195 2, as pleaded by the plaintiff, and the plaint C Schedule property had been allotted to the plaintiffs share at that partition. In the light of the aforesaid findings, the appeal filed by the first defendant was dismissed by the learned Ad ditional District Judge, the cross-objections filed by the plaintiff were allowed and in modi- 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) whethe r 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 souther n half thereof. 6. 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 questi ons 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 Nara yanaswamy. 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 defenda nt 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 be tween 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 portio n 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 an d 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. 7. 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 Dis trict 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 st atement 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 plaintiffs share was bas ed 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 wh ile 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 tha t 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 allott ed to the share of the plaintiff. In this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant. 8.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 tha t 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 allott ed to the share of the plaintiffIn this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant.