KONDAL RAO AND OTHERS Vs. GOPAL RAO

JUDGEMENT

(1.) (25.1.1962) - Sri Raghuvir, the learned counsel for the appellants, relying on the case of Karumuri Venkata Ramanatham and others v. Devalla Venkataratnam, 1959 ALT 114 : (1959) 1 An.W.R. 7 contended that he has no objection to the case being forwarded to the Talukdar as directed by the District and Sessions Judge, Bidar; but urged that when the lower appellate court was of the view that the matter was within the jurisdiction of the Talukdar, he ought not to have gone into the question of res judicata and left it to be decided by the Talukdar. Sri Balvanthrao Palnitkar, the learned counsel, relying on a Bench decision of the erstwhile Hyderabad High Court in Syed Hyder v. Abdul Rahman 35 Deccan Law Reports, 474 contends that the question whether the previous judgment operates as res judicate or not is not within the competence of the Talukdar but has to be determined by the Civil Court. In Karumuri Venkata Ramanatham and others v. Devalla Venkataratnam my learned brother, Seshachalapati, J. while considering the scope of Sections 6 and 16 of the Andhra Tenancy Act (18 of 1956) relating to the jurisdiction of the Tahsildar, held that the question whether there was a subsisting relationship of landlord and tenant or whether the applicant was a cultivating tenant or not was within the jurisdiction of the Tahsildar as those were collateral matters. I have got my own doubts whether the above questions or the questions involved in the instant case can be called incidental and collateral matters. The Talukdar's powers are limited under the Act. To accept the above interpretation would amount to importing something which the Act does not provide. I am therefore of the opinion that this matter should be decided by a Bench. Accordingly I refer the case to a Bench.JUDGEMENT - This second appeal on behalf of the defendants arises out of a suit for redemption filed by the respondent herein. The respondent's case was that his elder brother Hogir Rao obtained a consent decree against Dasarath and Krishna for declaration of his right to the patta and recovery of possession of the suit land. Appellant 1 and second appellant's father filed an objection before the executing court claiming their possession over the suit land on the basis of, a registered mortgage deed. That partition was allowed on 7-3-39 F. On 25-11-38 F. one gurappa instituted a preemption suit against Hogir Rao, Dasarath, Krishna and the first appellant and the father of the second appellant. That suit was decreed by the trial Court. The mortgagees and Hogir Rao, vendor, both went in appeal to the District Court. The District Court held that the mortgagors were entitled to the mortgage amount and directed that Hogir Rao be paid the mortgage money. The mortgagors preferred an appeal to the erstwhile Hyderabad High Court, which passed a declaratory decree in favour of the plaintiff declaring him to be a premptor of the suit land and directing him to deposit a sum of Rs. 1,000/- within six months thereof for payment to Hogir Rao the vendor, with a further direction that, the premptor might bring a separate suit for redemption of the mortgage and that he could not be forced to deposit the mortgage amount in the suit. It was also mentioned that if the purchase money was not deposited within the period of six months, the suit of the plaintiff Gurappa would stand dismissed. Gurappa, the pre-emptor failed to deposit the purchase money in the Court within the prescribed time.

(2.) Thereafter, the present respondent, who is the brother of the vendor, Hogir Rao approached the Revenue Court for obtaining an order with respect to the redemption of the mortgage under the Hyderabad Land Alienation Act. The appellant resisted the petition of the respondent on the ground that the Revenue Court had no jurisdiction to go into that matter. The then Dist. Collector accepted the contention of the appellants, and holding that it had no jurisdiction to entertain the petition directed the parties to go to the civil court. Hence the present action for redemption by the respondent alleging that when he asked the defendant to give back possession without taking any mortgage money having benefited from it for more than 20 years, the defendants refused to do so. The appellants resisted the claim of the respondent on the ground that O.S. 75/1 of 58 was a collusive decree, that the plaintiff had no right to the property, that Dasarath did not transfer the suit land to the predecessors-in-title to the plaintiff, that Gurappa, was a necessary party and that the Civil Court had no jurisdiction.

(3.) The trial court found that Gurappa was a necessary party and that the respondent-plaintiff was a legal representative and that he was entitled to redeem the property. On the question whether the Civil Court had jurisdiction to entertain the suit, it found that it had no jurisdiction. In the result, the trial court dismissed the suit. On appeal by the plaintiff, the appellate court accepted the findings of the trial court that the plaintiff as the legal representative was entitled to redeem the property. It also accepted the finding that Gurappa was a necessary party and that the civil Court had no jurisdiction. It however did agree that the suit should be dismissed; on the other hand, it found that it had to be transferred to the Revenue court under Act III of 1949 F. Hence this second appeal by the defendants.