PADMA VITHOBA CHAKKAYYA Vs. MOLID MULTANI

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court of Hyderabad whereby it affirmed the judgment of the Court of the Additional District Judge of Adilabad dismissing the suit of the appellant. The facts are that there was a joint family consisting of one Chakkayya and his younger brother Rajanna. Chakkayya died in year 1923 leaving behind the appellant his son who it is said was at that time a minor a few months old. On December 21, 1923, Rama Rao the second defendant, sold the lands which are the subject-matter of the suit to Rajanna. It appears that as there was some difficulty in Rajanna getting possession of the properties, which were stated to have been usufructuarily mortgaged to the first defendant, the transaction of sale was cancelled and the same was endorsed on the sale deed. Thereafter the second defendant executed a fresh sale deed in favour of the first defendant and the latter has ever since continued in possession. The appellant filed the present suit on February 14, 1943 for recovery of possession of these properties from the first defendant was in management of the properties belonging to the joint family of Chakkaya and Rajanna, and himself that the sale deed in favour of Rajanna dated December 21, 1923 vested title to the suit properties in the joint family, that the first defendant had entered on the management of these properties also as manager on behalf of the joint family that Rajanna died in 1930 as a minor, that the first defendant was discharged from the management in 1933, that he had not surrendered possession of the suit properties to the family, but was setting up a title to them in himself on the basis of a sale deed executed by the second defendant subsequent to the sale deed dated December 21,1923 in favour of Rajanna, but that the said sale deed could confer no title on him, as the second defendant had sold the lands previously to Rajanna, and had no title which he could thereafter convey. It was further alleged that the plaintiff became a major some time in June 1940 and that the suit for possession was within three years of his attaining majority and not barred by limitation. The first defendant contested the suit. He pleaded that he was merely a jawan or servant in the service of the family, that he was not in management of the joint family properties, that the suit lands had been usufructuarily mortaged to him in 1916 for Rs. 800 long before they were sold to Rajanna in 1923, that the sale in favour of Rajanna had been cancelled with his consent he having been paid back the consideration, that it was thereafter that the second defendant sold the properties to him and that he had therefore acquired a good title to them and that further as he had been in possession of the properties thereafter for over the statutory period in assertion of a title as owner, he had acquired title to them by prescription and that the suit was barred by limitation. He denied that Rajanna was a minor at the relevant dates as stated in the plaint. On these pleadings the District Munsiff framed the following issues:-

(2.) The learned District Munsiff, Nirmal, who tried the suit held that as the endorsement of cancellation of the sale deed in favour of Rajanna was unregistered, no title passed to the second defendant by reason of that endorsement and that accordingly the sale by him in favour of the first defendant conferred no title on him and further that the suit had been instituted within three years of the plaintiff's attaining majority and that it was in time and so he decreed the suit. Against this judgment and decree there was an appeal by he respondents to the Additional District Court of Adilabad, which held that the plaintiff had not established that he had attained majority within three years of the suit and on that finding the appeal was allowed. The appellant took the matter in second appeal to the High Court of Hyderabad which agreeing with the District Judge, held that the suit was instituted more than three years after the plaintiff had attained majority and dismissed the appeal. It is against this Judgment that the present appeal by special leave has been filed.

(3.) The first contention that is urged on behalf of the appellant is that the finding that the plaintiff had attained majority more than three years prior to the suit was erroneous. But there are concurrent findings on what is a question of fact, and we see no sufficient reason to differ from them.