E. MAHBOOB SAHEB versus N. SUBBARAYAN CHOWDHARY & ORS.

Citation: [1982] 2 S.C.R. 238 · Decided: 18-12-1981 · Supreme Court of India · Bench: V. BALAKRISHNA ERADI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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23S 
E. MAHBOOB SAHEB 
v. 
N. SUBBARAYAN CHOWDHARY & ORS. 
December 18, 1981 
[V. BALAKRISHNA ERADI AND R.B. MISRA, JJ.J 
Second Appeal-When no question of law whatever was agitated btfore 
the High Court, the High Court cannot interfere, in second appeal, with the finding 
of fact entered by the District Judge in first appeal-Civil Procedure Code, 
section JOO, scope of 
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In the insolvency proceedings half the property of one Allabaksh was :;old 
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by the Official Receiver to Moola Narayanaswamy in 1939 and the other half to 
Narasimhulu in 1945. Subsequently Narasimhulu transferred his interest in the 
property in favour of the daughter of Moola Narayanaswamy for a consideration 
of Rs. 4,000 under Exh. A-I dated May IO, 1948. 
One Nagappa obtained a simple money decree against Moola Narayana-
swamy in O.S. 26/1952 on the file of Sub-Judge Anantaour and in execution 
thereof, he attached and brought to sale in court auction two houses including 
the house purchased by the daughter of Moola Narayanaswamy. In the said 
court auction, Nagappa purchased the two houses for a sum of Rs. 2050 and 
in enforcement of the sale certificate, he obtained delivery of possession of the 
two houses. 
Since the application No. E.A. 90/58 filed by the daughter of 
Narayanaswamy in the Executing Court under Order XX!, Rule 100 C.P.C. 
asserting her independent right was dismissed, she filed a suit to set aside the 
said summary order and for recovery of possession of the property which is 
described in her plaint 'C' Schedule as falling to her share arising out of a partition 
effected in 1952. 
During the pendency of the suit, Nagappa sold the northern hmlf of the 
property in favour of Mahboob Saheb, the appellant herein, on March 21, 1961 
and later, the southern half of the property to N. Subbarayan Chowdhar:y, respon-
dent No. 1 herein, on June 19, 1961. 
Nagappa contested the suit on the ground that Narasimhulu was all along 
acting as a benamidar for Narayanaswamy, when he purchased the half share in 
court 
auction 
in 
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and 
again tranfferrcd 
the said share in 
favour of Narayanaswamy's daughter benami for Narayanaswamy and as such 
the sale by the court in his favour was valid. 
The Trial Court disbelieved the plea of benami taken by Nagappa, found 
that the plaintiff was the owner of a half share in her own right, and that there 
was no partition by metes and bounds of the entire property brought to sale, by 
court auction. The Trial Court, therefore, set aside the summary order passed 
in E.A. 90/58 in E.P. 7/56 in OS. 26/52 of the Sub-Judge, Anantapur and a 
preliminary decree for partition of the 'B' Scheduled property by metes and 
bounds into the equal shares and for allotment and delivery of one such share 
to the plaintiff. 
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ll. MAflilOOB SAHEB v. N.S. C1IOWOHARY (Balakrishna Eradi, J.) 
239 
Nagappa's appeal before the District Court (A.S. 173/66) was dismissed and 
the objections of the plaintiff were allowed, and accepting the plea of partition 
the District Court granted a decree for recovery of possession of the plaint 
'C' Schedule. 
In further second appeals, the High Court dismissed Nagappa's appeal on 
the plea of benami but reversed the findings of the District,Court as to the 
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question of partition pleaded by the plaintiff. All,.,wing the appeal of the 8th 
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defendant (Respondent No. I herein) the High Court held that it was a case 
where a partition of the property should be effected between the plaintiff on the 
one hand and the appellant and respondent No. I herein on the other. Hence 
the appeal by special leave by 7th defendant Mahboob Saheb . 
Allowing the appeal and leaving the question relating to the rights inte• se 
as between appellant and respondent No. I open, the Court 
HELD : I. It was not open to the High Court to reappreciate the evidence 
and substitute its own conclusions in place of those entered by the lower court, 
while exercising the jurisdiction conferred by section 100 C.P.C. The finding 
entered by the Additional District Judge that a partition had taken place between 
the piaintiff and the uther legal heirs of Narayanaswamy in 1952, and as a result 
thereof the southern portion of the ·B' Schedule property (plaint 'C' Schedule 
property) had been allotted to the plaintiff's share was based on a detailed con-
sideration of the legal evidence available on the record. The relevant portions of 
the evidence having a bearing on

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