Narayanan Gopala Pillai vs Sankaran Raghavan Pillai and Others

These appeals arise out of the order of the learned Dist. J., Parur dated 23-1-1950 passed on C. M. P. 130 of 1950 in O S. No. 37 of 1103, A. S. No. 98 is by the obstructor petnr. in C. M. P. 130 & A. S. No. 136, by deft 7 & some other defts.

A. S. No. 98 of 1950. The applt. in A. S. No. 98 obstructed delivery of possession of properties in execution of the decree in O. S. No. 37 of 1103 which was a decree for partition in a Malabar Tarwad. The obstruction related to six items. The obstruction was upheld in respect of items 2 to 6 & was disallowed in respect of the first item. A. S. No. 98 relates to the first item regarding which obstruction was disallowed & A. S. 136 relates to items 2 to 6 regarding which the obstruction was allowed.

The resp, in A. S. No. 98 raises a preliminary objection to the maintainability of the appeal on the ground that the applt. is a transferee of properties pendente lite, that is, the transfer relied upon by him which is a mtge. executed in his favour by deft. 4 was after the institution of the suit O. S. No. 37 of 1103 which was a suit for partition. The transferee pendente lite, it is contended, is not a representative of the party & therefore, will not come within the operation of Section 40, Travancore CPC with the result that the order passed by the lower Ct must be regarded as an order passed against a stranger to the suit & that only an original suit is competent as provided in the Code. In AIR 1937 260 (Privy Council) the P. C. held that a transferee pendente lite, is a representative interest of the party from whom he got the transfer. The reason is obvious because a Itransfer alter the institution of a contentious suit is not bad for all purposes; such a transferee would be disentitled to raise any claim against the decree or order that may ultimately be passed in the action. The learned Counsel for the resp. relies upon Basappa Budappa Halavalad Vs. Bhimangowda Shiddangowda Patil, to support his position, namely, that a transforee pendente lite is not a representative. That decision when perused reveals that the non-representative character of the transferee is only for the purpose of questioning the pltf''s. right to see & that for all other purposes the transferee is a representative. Thu3 on the reaps. own showing, whore a transfer is effected is pendens the transferee is entitled to raise the objections & pursue the remed.es as the transferor could have done. The preliminary objection is, therefore, overruled.

Coming to the merits of the matter, Mr. N.K. Narayana Pillai, for the applt. complains that his client has had no opportunity to adduce necessary evidence in the case and that the matter was straightway posted for argument without posting she case for evidence. It appears to us that the case should have been posted for evidence & that the parties should have bean afforded an opportunity to adduce evidence in the case. The learned counsel for the resp. is not prepared to argue the case as a demurer accepting all allegations made on bahalf of the applt. We have, therefore, to reverse the order of the Ct below in so far as it relate3 to item 1, which is the subject-matter of appeal suit No. 98, allow that appeal & remind the case to the Ct. below for disposal according to law after affording an opportunity to the parties to adduce evidence, oral or documentary, or both. The T. P. Act is not in the S ature Book of Travancoce bat the principles underlying in Section 52 there of have been accepted by the Travancore H. C. & it is the common case of the litigants in this case that these principles apply. In fact the resp. depends upon those principles. Wo direct that the costs of this appeal shall abide & follow the result in the Ct. below which will provide for it in the revised order to be passed by it.

A. S. No 136 of 1950. This appeal as already mentioned relates to items 2 to 6 in the petn. filed by the resp. These items were admitedly outstanding with lessees under the tarwad who wore not parties to the suit. The obstructor obtained possession from these lessees. In a matter of obstruction what the Ct. is conoerned with is only possession & title to possession. The tarwad not having had title to actual possession at the time the suit was filed the lower Ct. rightly upheld the obstruction of the resp. The fact of the properties being outstanding on lease under the tarwad before the date of the suit is not canvassed before us by the applt In this view the appeal is without merits & has to be dismissed with costs.