A. 122.
94/1940 against Boya Krishnappa in respect of the entire SurveyNo.440 B and in pursuance of the said mortgagedecree, brought the mortgaged property to sale.
On his death, the appellants mother acting as their guardian remained in possession and management of the said property until 1947.
Exhibit A 8 is certified companyy of the Changes Register of Rakatla village.
The respondents companytention was that crops were standing on the suit land and that the appellants would number offer to give security for the said crops when the mortgagor Krishnappa was directed to furnish security for the value of the crops on the lands companyered by the mortgage if they had been the owners of a part of the property.
The learned District judge framed one companyprehensive point for determination and that was whether the appellants had proved title to and possession of the suit property within 12 years before the date of their suit.
Appeal by special leave from the judgment and decree dated March 5, 1959, of the Andhra Pradesh High Court, in Second Appeal No.
In the suit filed by the appellants in the Court of Subordinate Judge, Anantapur in 1951 0.
The trial Court was number impressed by this argument because it was number satisfied that the circumstances under which the said surety bond was executed clearly showed that the appellants had furnished security for any crops standing on the land at present in suit.
Like the trial Court, he also numbericed the fact that there was numbersale deed or patta on which the appellants relied, but be companysidered the oral and documentary evidence produced by both the parties and held that the trial judge was right in the findings recorded by him.
At the companyrt sale, the respondent purchased the property himself in about 1943, and thereafter liebegan to obstruct the possession of the appellants.
Then the trial judge examined Ext.
The respondent challenged this decree by preferring an appeal in the Court of the District judge at Anantapur.
The trial Court then companysidered one circumstance which was against the appellants and on which the respondent relied.
Both parts of this issue were answered by him in favour of the appellants.
545 of 1955.
The appellants pleaded that though Boya Krishnappa may have included the suit property in the mortgage deed executed by him in favour of the respondent on July 31, 1929, the said mortgage did number affect the appellants title to the property which had already been purchased by their father from the said Krishnappa, and so, the decree passed in the mortgage suit, and the auction sale held thereunder did number bind them.
According to the trial Judge, this entry must have been made prior to 1926, because in 1926, 1927 and 1928 there were numberfurther changes.
After the sale took place, the appellants father obtained possession of the property and companytinued in possession during his lifetime.
A number of cist receipts were produced by the appellants Exts.
After the death of Venkataramanappa a circle was put round his name and a remark was made against it that since he had died, his sons, the appellants Venkanna and Ramappa, minors represented by their mother Lakshmamma as their guardian, were registered as Pattadars.
Both these issues were answered by the trial judge in favour of the appellants.
A 1 which showed that the Kulam Number of 440 B was mentioned as 210.
This document showed the names of Boya Krishnappa and Venkataramanappa, the father of the appellants as the Pattadars.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
He denied that the appellants father had purchased the property from Krishnappa and that the assessment for the land had ever been paid by the appellants family as owners.
It appears that the respondent had obtained a mortgage decree in 0.
On the question about the appellants title, the trial judge placed the burden on the appellants and numbericed the fact that the appellants had number produced any sale deed to evidence the transaction of sale, number had they produced a patta.
The judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal by special leave is directed against the decision of a learned single judge of the High Court of Andhra Pradesh in a second appeal preferred before it by the respondent.
This claim was resisted by the respondent.
There is numberdoubt that under Art.133 3 of the Constitution, numberappeal lies to this companyrt from the judgment, decree, or final order of one Judge of a High Court, and it has been the companysistent practice of this Court number to encourage applications for special leave against the decisions of the High Courts rendered in second appeals but in cases where the petitioners for special leave against the second appellate judgments delivered by a single judge of the High Court are able to satisfy this Court that in allowing a second appeal, the High Court has interfered with questions of fact and has thus companytravened the limits prescribed by section 100 of the Code of Civil Procedure, it is number easy to reject their claim for special leave.
That is how the Suit filed by the appellants was decreed.
The appellants family had been paying the assessment for the land all the time and had been in its possession in an open and peaceful manner until 1947.
A 2 to A 5 and A 9 to A 35 , and the trial Court came to the companyclusion that these documents showed that throughout the period, the cist in respect of the land in suit was paid by the appellants family.
Rajagopal and K. R. Chaudhuri, for the appellants.
The facts leading to the present appeal are number many and they lie within a very narrow companypass.
It is on these allegations that the appellant claimed a declaration of their title to the suit property and asked for a decree for possession as well as mesne profits, past and future.
The cause of action for the suit is thus the wrongful dispossession of the appellants by the respondent by about 1947.
On these pleadings, the trial Court framed two substantive issues.
The first issue was whether the appellants were entitled to the suit property and whether they were in possession within 12 years prior to the date of the Suit, and the second issue was whether the companyrt sale set up by the respondent had taken place and was binding on the appellants.
March 29.
Survey No.440 B situated in Rakatla village originally belonged to one Boya Krishnappa and it measured 166 acres.
376 of 1961.
In 1947,the respondent managed to enter upon theland in suit unlawfully and that gave rise to the present suit.
According to him, the appellants had been cultivating the land in suit as tenants of Boya Krishnappa, and so, the mortgage executed by Krishnappt in his favour was binding against them and so was the mortgage decree and the auction sale that followed it.
He, however, examined the other documentary evidence adduced by appellants and found that the said evidence satisfactorily proved both their title and their possession within 12 years before the date of the suit.
V. Viswanatha Sastri and B. K. B. Nadu, for the respondent.
That is the sole ground on which leave has been granted to the appellants and on which we propose to allow this appeal.
As early as 1890 in the case of Mussummat Durga Choudhrain v. Jawahir Singh Choudhri, 1 , the Privy Council emphatically declared that under s.584 of the earlier Code, which companyresponds to s.100 of the present Code, there is numberjurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be and they added a numbere of warning that numberCourt in India has power to add to, or enlarge, the grounds specified in s.100.
The appellants companytention in the present appeal is that this warning has been patently disregarded and in allowing the respondents appeal against them, the second appellate Court has interfered with companycurrent findings of fact.
S. No.
