BAPPU RAWTHER ABDUL KASSIM RAWTHER Vs. STATE OF KERALA
HIGH COURT OF KERALA
BAPPU RAWTHER ABDUL KASSIM RAWTHER
STATE OF KERALA
Referred Judgements :-
RUGG V. MINETT
CORNFOOT V. FOWKE
FIBROSA SPOLKA AKCYJNA V. FAIRBAIRN LAWSON COMBE BARBOUR LTD.
DERRY V. PEEK
PEARSORT AND SON LTD. V. DUBLIN CORPORATION
ARMSTRONG V. STRAIN
V. MATHAI V. OOMMEN
NAGALINGA CHETTIAR V. GURUSWAMI AYYAR
NARASINJI VANNECHAND FIRM AND ANR. VS. SURYADEVARA NARASAYYA, SON OF NAGAYYA AND ORS.
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(1.)The plaintiff is the appellant. The suit was for recovery of damages. 5 acres and 24 cents of property in S.No. 303/1 belonged to one Kochu Kunhu. That property together with 57 cents in S. No. 15/2, was sold in one lot in revenue auction for arrears of Abkari dues due from the said Kochu Kunhu and it was purchased by the plaintiff. It was alleged that Kochu Kunhu had no title to S. No. 303/1 at the time of the revenue auction; and the suit was for recovery of the proportionate amount of the purchase money from the State. The defendant, the State of Kerala, contended that there was no warranty of title in a revenue sale, that the plaintiff was aware of the want of title of Kochu Kunhu to S. No. 303 1 and that the plaintiff was not entitled to any reliefs.
(2.)The court below found that there was no warranty of title in a revenue sale, and that the plaintiff was not entitled to any relief, for the reason that there was no total failure of consideration.
(3.)The question for consideration in this appeal, therefore, is whether the plaintiff is entitled to a refund of the proportionate purchase money. It is admitted that originally these two properties belonged to the defaulter and that there was a subsisting mortgage on S. No. 303/1 when the State attached that property. The mortgagee instituted a suit in O. S. 570/112 and obtained decree and in execution thereof the transferee of the decree purchased the property in 1119. When the auction purchaser was about to take delivery, the Government Pleader filed an application, Ext. II, in the case, objecting to delivery. Ext. II was filed on 23rd Thulam 1112. That petition was allowed by the Munsiff, but in revision the petition was dismissed. When the properties were put up for sale in the revenue case, it was stated: in the sale proclamation that what was being sold in S. No. 303/1 was "ap³ _m²yX \o¡nbpff kÀÆmhImiw". Ext. D 3 is the proclamation notice and in the relevant column the above description has been inserted. Ext. D 3 is dated 18th Thulam 1122. The revenue sale took place on 30th Thulam 1122 and after the sale the plaintiff was given delivery of possession of the properties by the State, but soon after, the auction purchaser in O. S. No. 570/112 recovered possession of S. No. 303/1 from the plaintiff. The plaintiff's case is that so far as S. No. 303/1 is concerned, Kochu Kunhu had no title at the time of the revenue sale as that property had already been sold in execution of the decree in O. S. 570/112. It was therefore argued that as there was a total failure of consideration so far as that item is concerned the plaintiff's entitled to get a refund of the proportionate amount paid by him as purchase money. Plaintiff purchased the two items for a total consideration of 1825 Sirkar rupees. He subsequently sold S. No. 15/2 for Rs. 300 under Ext. P 5. So the plaintiff claimed the sale amount with interest after deducting Rs. 300, the consideration for Ext. P 5 sale.
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