K. Muthuraj and Others vs Sankarapandian and Others

T. Mathivanan, J.—The judgment and decree, dated 28.9.2000 and made in A.S. No. 8 of 1999 on the file of the learned Subordinate Judge, Sivakasi, reversing the judgment and decree, dated 23.12.1993 and made in O.S. No. 282 of 1990 on the file of the learned Additional District Munsif, Sattur are under challenge in this memorandum of second appeal.

The appellants herein are the plaintiffs in the suit in O.S. No. 282 of 1990, whereas the respondents 1 and 2 are the defendants.

The above suit was originally filed by the appellants 1 to 9. Since the second appellant M. Ramuthai had passed away during the pendency of the second appeal, the 10th appellant has been brought on record as her legal representative and the first appellant has been recognised and recorded as one of the legal representatives of the deceased second appellant, vide order, dated 20.7.2012 and made in M.P. Nos. 1 and 2 of 2012.

For easy reference and for the sake of convenience, the appellants may hereinafter be referred to as the plaintiffs and the respondents be referred as the defendants wherever the context so require.

The plaintiffs have filed the suit as against the defendants seeking the following reliefs:--

"a. For a declaration that ''A'' Schedule property except the properties specified under Schedule B, C, D and E belongs to the plaintiffs 1 and 2 and consequently for a permanent injunction restraining the defendants and their men from in any manner interfering with the possession and enjoyment of the plaintiffs 1 and 2.

b. For a declaration that ''B'' Schedule property belongs to the plaintiffs 3 and 4, ''C'' Schedule property belongs to the plaintiffs 5 and 6, ''D'' Schedule property belongs to the 7th plaintiff, ''E'' Schedule property belongs to the plaintiffs 8 and 9 and consequently, for a permanent injunction restraining the defendants and their men from in any manner interfering with the possession and enjoyment of the plaintiffs 1 and 2 and also for costs."

The trial Court had originally decreed the suit as prayed for on 23.12.1993. On appeal preferred by the defendants 1 and 2, the first appellate court had reversed the judgment and decree of the trial court on 28.9.2000 after allowing the appeal.

The lower appellate court while reversing the judgment and decree of the trial court, i.e., while dismissing the entire suit had found that :--

"a. The defendants have no right over the property belonged to Subbaiah Devar and that they were also not in possession and enjoyment of the said property.

b. The defendants did not object to the sale deeds executed by the plaintiffs 1 and 2 after the plaintiffs 3 and 4, 5 and 6, 7, and 8 and 9 respectively under the exhibits Ex. 9 to Ex. A12.

c. The sale deed under Ex. A1 said to have been executed in favour of Ganapathyammal was only in respect of 90.5 cents, but she could not execute any settlement in favour of the plaintiffs 1 and 2 under Ex. A8 in respect of ''A'' Schedule property to an extent of 95 cents.

d. When the sale deed under Ex. A1 was with reference to 3/8 share in respect of the well situated in the land, Ganapathyammal could not have conveyed a half right as against her entitlement of 3/8 share and the purchaser Ganapathyammal could not convey better title than what she had.

e. When ten cents of land was acquired by the Government from the lands purchased by Ganapathyammal she could have been left with only 80.5 cents, i.e., 90.5 - 10.0 = 80.5, and therefore, the settler Ganapathyammal could not have executed settlement deed in respect of 95 cents, whereas she could only be entitled to 80.5 cents."

In paragraph No. 16 of the judgment, the lower appellate court has upheld the validity of the sale deed under Ex. A1 saying that the defendants have not proved the fact that the sale deed under Ex. A1 was tainted with illegality, simply because, in the encumbrance certificate Ex. B3, the sale deed under Ex. A1 was not referred to.

There was no possibility of the existence of 95 cents as claimed in Ex. A8 settlement deed and on that basis, the declaration sought for by the plaintiffs could not be granted.

The lower appellate court has also found that the defendants themselves had not disputed the possession of the plaintiffs 3 to 9 over the properties specified under Schedules ''B'' to ''E'' and further found that even the declaration in favour of the plaintiffs 3 to 9 pertaining to the properties specified under Schedules ''B'' to ''E'' is granted still the decree of permanent injunction had not been sought for by the plaintiffs 3 to 9 in their favour.

One of the major grounds raised by the appellants in the memorandum of second appeal is that having found that the defendants have no right over the property belonged to Subbaiah Devar and that they were also not in possession and enjoyment of the said property, the lower appellate court without considering the specific finding given by the trial Court in favour of the plaintiffs went wrong in dismissing the suit in its entirety after allowing the first appeal.

Impugning the judgment and decree of the first appellate court, dated 28.9.2000, the appellants stand before this Court with this second appeal.

The second appeal came to be admitted on the following two substantial questions of law:--

"a. Whether the lower appellate court is not right in refusing to grant relief of declaration and injunction when it found the appellants/plaintiffs are in possession of 95 1/2 cents of land?

b. Whether the lower appellate court is not right in dismissing the suit when the respondents/defendants have not established that the sale deed executed by their father is a fraudulent document?"

CONSPECTUS OF FACTS:

The properties described in B, C, D and E Schedule are the portions of the properties specified in ''A'' Schedule.

The ''A'' Schedule property was originally belonged to Subbaiah Devar, who is none other than the father of the defendants 1 and 2.

The first plaintiff''s mother Ganapathyammal had purchased the ''A'' Schedule property from the said Subbaiah Devar on 1.12.1949 under a registered sale deed for a valuable consideration (Ex. A1).

The suit property and other portions were originally in Zamin Survey Number 317/1 measuring 1.81 cents. Of which, the first plaintiff''s mother Ganapathyammal had purchased 90 1/2 cents on the western portion, which is the share of Subbaiah Devar.

After the estate was taken over in the survey and settlement, the property purchased by Ganapathyammal was assigned with survey number 47/2A with an extent of 95 cents.

Thereafter, out of love and affection, Ganapathyammal had executed a registered settlement deed, dated 30.6.1997 in favour of her son, the first plaintiff and her daughter-in-law, who is the second plaintiff herein and thereby gifted the ''A'' Schedule property in their favour.

The settlement deed was accepted by the plaintiffs 1 and 2 and acted upon and that they had been in possession and enjoyment of ''A'' Schedule property.

The plaintiffs 3 to 9 have purchased the portions of ''A'' Schedule property as house sites from the plaintiffs 1 and 2. The 4th plaintiff is the wife of the third plaintiff. Therefore, they have jointly purchased the ''B'' Schedule property on 12.12.1997 under a registered sale deed. After their purchase, they have constructed a building in ''B'' Schedule property.

The 6th plaintiff is the wife of 5th plaintiff and as such, they have purchased ''C'' Schedule property from the plaintiffs 1 and 2 on 16.9.1999 under a registered sale deed. The seventh plaintiff has purchased ''D'' Schedule property on 16.9.1989 from the plaintiffs 1 and 2 and he has also put up construction over the suit property specified in ''D'' Schedule. The ninth plaintiff is the wife of 8th plaintiff and as such they have purchased ''E'' Schedule from the plaintiffs 1 and 2 jointly for a valuable consideration.

After their purchase, the plaintiffs 3 to 9 have been in possession and enjoyment of their respective properties. Similarly, the plaintiffs 1 and 2 have been in possession and enjoyment of ''A'' Schedule property excluding the properties described under Schedules B, C, D and E.

After the sale by Subbaiah Devar, the defendants 1 and 2 have no right whatsoever in ''A'' Schedule property. The properties described under ''A'' Schedule is meant to be irrigated from the well situated in survey number 47/1. The ''A'' Schedule property has half right in the well. Out of the remaining half share in the well one Joseph is entitled to 1/4th share and the defendants together with the land comprised in survey number 47/3A are entitled to 1/4 share.

The defendants have no right in the '' A'' Schedule property. Since the defendants have been attempting to interfere with the possession and enjoyment of the plaint schedule properties from the last week of June 1990, the plaintiffs were constrained to file the above suit for the reliefs as afore stated.

The said suit was resisted by the defendants 1 and 2, who are the sons of Subbaiah Devar.

They have contended that the entire extent in Zamin Paimash No. 317/1 is 1.81 cents. It was originally belonged to one Sivagami Achi. One Kathiresan, who is the husband of Sivagami Achi, had purchased the property in court auction in E.P. No. 71 of 1933 in O.S. No. 276 of 1919 on the file of the learned District Munsif, Sattur. He had also taken delivery of the said property. Thereafter, he had died leaving his wife, viz., Sivagami Achi as his legal heir and as such Sivagami Achi came to be in possession and enjoyment of the said property. Thereafter, she had sold the said property measuring 1.81 cents in favour of Subbaiah Devar, who is none other than the father of the defendants 1 and 2, and his brother Thangaiah Devar.

That on 12.9.1941 both the purchasers, viz., Subbaiah Devar and Thangaiah Devar had executed a Othy in favour of one Kaliammal wife of one Duraisamy Devar.

In pursuant to the Othy, dated 12.9.1941, the property was under the possession and enjoyment of the mortgagee and therefore, no partition was effected between the brothers.

As on 1.12.1949, Subbaiah Dever was entitled to 1/2 right in the entire property and as such, the sale deed, dated 1.12.1949 could not have conveyed the right in respect of western half portion to Ganapathyammal, who is none other than the mother of the first plaintiff. Subbaiah Devar could not have executed the sale deed, in favour of Ganapathyammal on 1.12.1949 when the Othy was in force and therefore, the sale deed, dated 1.12.1949 could be a forged document. The alleged purchase of 90.5 cents by Ganapathyammal could not be enlarged as 95 cents. Hence, the wrong measurement will not confer any title to Ganapathyammal under the settlement deed, dated 30.6.1977, and therefore, Ganapathyammal could not have conveyed title in respect of larger extent.

Out of the western portion in Zamin Survey No. 317/1, new survey number 47/3A and 47/2A, the State Government had acquired southern portion and a road was formed to an extent of ten cents in or about 1968.

The plaintiffs have suppressed the fact that the portion of survey No. 47/2A is a road at present.

Since the plaintiffs have sought the relief of declaration of their title over the suit survey number 47/2A, the State Government should have been impleaded as a party. Therefore, the suit is bad for non joinder of necessary party. Even assuming that the sale in favour of Ganapathyammal is true, it will convey the right only to the portion deducting the road portion in the undivided share of Subbaiah Devar.

The plaintiffs 1 and 2 were not entitled to 95 cents on the date of settlement. Even assuming that Thangaiah Devar was entitled to eastern 90 1/2 cents the same should be available on the spot.

The defendants are aware of the sale deeds executed by the plaintiffs 1 and 2 in favour of the plaintiffs 3 to 9. Since they are not parties to the documents, it will not bind upon them. The vendors had no title to convey the properties and therefore, the sale deeds, dated 12.2.1987 and 16.9.1989 will not transfer any better title to the plaintiffs 3 to 9.

The plaintiffs should have filed separate suits in respect of their respective portions purchased by them. Therefore, a single suit is not maintainable.

Based on the pleadings of the parties to the suit, the trial Court has formulated as nearly as eight issues and one additional issue.

On appreciation of the evidences both oral and documentary, the learned trial Judge had proceeded to decree the suit as prayed for by the plaintiffs.

Having been aggrieved by the judgment and decree of the trial court, dated 23.12.1993, the defendants have preferred an appeal in A.S. No. 8 of 1999 on the file of the learned Subordinate Judge, Sivakasi, and after hearing both sides, the lower appellate court has allowed the appeal after reversing the judgment and decree of the trial court. Challenging the judgment and decree of the first appellate court, this second appeal is preferred before this court.

Heard Mr. S. Subbiah, learned counsel appearing for the appellants and the first respondent Mr. Sankarapandian, who is appearing as party in-person.

The entire extent of 1.81 cents in Zamin survey number 317/1 was originally belonged to one Subbaiah Devar and his brother Thangaiah Devar.

According to the plaintiffs, after the estate was taken over in the survey and settlement, the property purchased by Ganapathiammal from Subbaiah Devar was assigned with survey number 47/2A with an extent of 0.95 cents.

The defendants have also stated in paragraph No. 4 of their written statement saying that out of the western portion in Zamin survey No. 317/1, new survey number 47/2A and 47/3A were assigned and that the State Government had acquired southern portions and in pursuant to the said acquisition, a road was formed in or about ten cents in 1968.

In paragraph No. 5, the defendants have also stated that even assuming that it is true that Ganapathyammal had purchased the property from Subbaiah Devar, it will convey the right only to the portion deducting the road portion in the undivided share of Subbaiah Devar and that the plaintiffs 1 and 2 were not entitled to 0.95 cents on the date of settlement. This is the major contention raised by the defendants 1 and 2.

Ex. B2 is the certified copy of the registered sale deed, dated 4.9.1941. From the face of this document, it appears that one Subbaiah Devar and Thangaiah Devar had purchased the property described therein comprised in Zamin Punjai survey No. 317/1 measuring 1.81 cents from one Sivagami Ammal wife of Kathiresan Chettiar.

Ex. B8 is the original sale deed. On a cursory perusal of this document, it reveals that the said Kathiresan Chettiar, who is the husband of Sivagami Aachi (vendor of Subbaiah Devar and Thangaiah Devar) had purchased the said property from court auction with reference to E.A. No. 433 of 1934 in E.P. No. 71 of 1933 on the file of the District Munsif Court, Sattur in O.S. No. 276 of 1923 on the file of the Additional District Munsif, Srivilliputhur.

After the demise of her husband, Sivagami Aachi came into possession and enjoyment of the same in the capacity of absolute owner and as such, she had conveyed that property in favour of Subbaiah Devar and Thangaiah Devar under the above said document Ex. B8. There is no dispute with regard to this fact.

It also reveals that the said Thangaiah Devar had purchased the above said property along with a well and its appurtenances.

It is the case of the plaintiffs that the first plaintiff''s mother Ganapathyammal had purchased 90 1/2 cents out of 1.81 cents from Subbaiah Devar, who is the father of the defendants 1 and 2 under Ex. A1 registered sale deed, dated 1.12.1949. This document under Ex. A1 reveals that Subbaiah Devar had executed this sale deed in favour of Ganapathyammal for himself as well as on behalf of his minor sons, viz., the defendants 1 and 2.

This document also reveals that Subbaiah Devar for himself and on behalf of the minor sons (defendants 1 and 2) had sold the property measuring 90 1/2 cents along with 3/8 share in the well situated therein, i.e., the western portion of the total extent of 1.81 cents.

It is pertinent to note here that at the time of execution of Ex. A1 as on 1.12.1949, the defendants 1 and 2 were minors. If at all they wanted to challenge this document, it should have been done within three years after attaining their majority. But they did not do so.

The suit in O.S. No. 282 of 1990 seems to have been filed in the year 1990. This document (Ex. A.1) was executed on 1.12.1949. Therefore, it is thus crystallised that the suit based on the alleged disturbances made by the defendants 1 and 2 to the possession and enjoyment of the plaintiffs was filed after 41 years. Therefore, if any claim is made by the defendants 1 and 2 is squarely barred by limitation and therefore, they are totally estopped by law from making such claim.

Apart from this, it is the case of the defendants that even if it is presumed that Ganapathyammal had purchased the property under Ex. A1 in the undivided share of Subbaiah Devar, Ganapathyammal is not entitled to 0.95 cents on the date of her settlement, because as it is revealed from Ex. A1 that she has purchased only 90 1/2 cents.

The defendants have contended that she could not have executed the settlement deed in favour of the plaintiffs 1 and 2 in respect of 0.95 cents. But in this connection, the plaintiffs have produced Ex. A2 patta.

From Ex. A2 it is revealed that the patta bearing No. 260 stands in the name of one Karuppayeeammal, Muthuraj and one Krishnammal. It appears to have been issued in respect of the land measuring 0.38.5 ares comprised in survey number 47/2A.

It is significant to note here that one ares is equivalent to 2.47 cents and therefore, for 0.38.5 ares, it comes to 0.95 cents.

As afore stated, as per Ex. A1, Ganapathyammal had purchased 90 1/2 cents along with 3/8 share in the Well. Ex. A8 is the settlement deed seems to have been executed by Ganapathyammal in favour of her son Muthuraj (first plaintiff) and his wife Ramuthai (second plaintiff) in respect of 0.95 cents comprised in S. No. 47/2A along with 1/2 share in the well comprised in S. No. 47/1.

As adumbrated supra, Ex. A2 patta was issued on 25.1.1984. Ex. A8 settlement deed seems to have been executed by Ganapathyammal on 30.6.1977.

On the reverse of Ex. A2 patta, it is stated that if any, objection is to be made, it shall have to be made on or before 20.2.1984 before the Special Tahsildar (UDR).

However, no such objection was raised by any one including the defendants on or before 20.2.1984.

On appreciation of the evidences available on record, the learned trial Judge, has given an unambiguous finding for the first issue formulated before the commencement of trial saying that the plaintiffs have proved their title and possession over the plaint ''A'' Schedule property through Exs. A1 to A8.

As argued by Mr. S. Subbiah, learned counsel appearing for the plaintiffs, the learned first appellate Judge, in paragraph No. 11 of his judgment has given a finding saying that as it appear through Ex. B3 Encumbrance Certificate, the property (Iyan punjai) comprised in Paimash No. 317/1 has been sub-divided as survey number 47/2A and 47/1 and that both sides have admitted that the property described under ''A'' Schedule was previously comprised in Paimash No. 317/1 and thereafter, as per sub division now comprised in survey number 47/2A and 47/1.

Besides this, the lower appellate court has also found that the defendants'' paternal uncle Thangaiah Devar, as per Ex. B4 had purchased 10 cents of land with other properties on 3.7.1952 and that the property described in Ex. B.4 was comprised in Zamin S. No. 317/2 and therefore, there was no nexus between the Zamin S. No. 317/2 and the suit property.

In paragraph No. 13, the lower appellate court has given a finding saying that the defendants had not produced any documentary evidence to show that they were in possession and enjoyment of the total 1.81 cents.

The learned lower appellate Judge has also found that the defendants have not established their case saying that the entire extent of 1.81 cents was inherited by them as the legal heirs of Subbiah Devar and Thangaiah Devar.

In paragraph No. 14, the learned first appellate Judge has found that Ganapathyammal, who is the mother of the first plaintiff had purchased 90 1/2 cents out of 1.81 cents along with 3/8 share in the well.

As per the settlement survey, the land measuring 0.95 cents was entrusted to Ganapathyammal and she was also issued patta to that extent of the land and thereafter, the Zamin Paimash No. 317/1, after survey settlement, was sub-divided as 47/2A and 47/1 and that these facts have not been denied by the defendants.

The plaintiffs 3 to 9 have purchased a portion from plaint ''A'' Schedule under Exs. A9 to A12. However, the lower appellate court has found that as per Ex. A1 Ganapathyammal had purchased only 90 1/2 cents and therefore, she could not have executed the settlement deed under Ex. A8 to an extent of 95 cents.

Similarly, as discussed in the foregoing paragraphs, the lower appellate court felt that when the sale deed under Ex. A1 was with reference to 3/8 share in respect of the Well situated in the land, Ganapathyammal could not have conveyed half right as against her entitlement for 3/8th share and that the purchaser Ganapathyammal could not convey a better title than what she had.

Had the lower appellate court been scrutinised both oral and documentary evidences, the claim of the plaintiffs would not have been shattered or shaken by the defendants through their oral and documentary evidences. The evidences available on the part of the defendants are not at all sufficient to test the reliability and trustworthiness of the evidences adduced on behalf of the plaintiffs.

The lower appellate Judge has not considered the evidences of P.W.1, wherein he had explained as to how he came into possession of over and above 90.5 cents and at page No. 18 of the typed set of papers it was explained by him that in addition to the land in Ex. A1 they were also in possession of adjoining land, viz., Odai Poramboke, and therefore, as per Ex. A2 Patta, he was entitled to 95 cents and the patta passbook was issued under Exs. A6 and A7.

As argued by Mr. S. Subbiah, it is not the case of the defendants that the plaintiffs are in possession of their land and if it is so, assuming that the defendants were deprived of their land, then it is for them to institute a proper suit for declaration over their property.

The execution of Ex. A1 sale deed by Subbiah Devar in favour of Ganapathyammal has been proved through P.W.2, who is the attestor of Ex. A1.

As adumbrated supra, Ex. A1 sale deed was executed by Subbiah Devar not only for himself and on behalf of the defendants herein, who were minors then, as their father and natural guardian and therefore, Ex. A1 sale deed stands proved by them in law and on facts. Unless and until, Ex. A1 sale deed is set aside by the competent court of law, it will definitely bind upon the defendants as they were also co-vendors to the sale deed Ex. A.1.

It is more important to note here that the defendants have not pleaded in their written statements saying that they were in possession of the entire extent of 1.81 cents at any point of time prior to the suit.

It is obvious to note here that D.W.1 even during his examination in chief, has admitted that the plaintiffs alone have put up their residential houses in their respective house sites and that still they are in possession of their respective properties as described in the plaint schedules.

It is also significant to note here that the defendants have never pleaded that both Subbiah Devar and Thangaiah Devar were not divided at any point of time and that they were living jointly.

It is the case of the defendants that after the purchase from Sivagami Achi under Ex. B2 Subbiah Devar and Thangaiah Devar had mortgaged the property measuring 1.81 cents in favour of one Kaliammal w/o. Duraisamy Devar for Rs. 100/- and in pursuant to the said mortgage, the property was under the possession and enjoyment of the mortgagee.

It is also the case of the defendants that since there was no partition between the brothers, viz., between Subbiah Devar and Thangaiah Devar as on 1.12.1949, i.e., the date of execution of sale deed under Ex. A1 by Subbiah Devar in favour of Ganapathyammal, Subbiah Devar had only an undivided 1/2 right in the entire property.

In his evidence, D.W.2, who is the first defendant, has admitted that Ex. B9 is the mortgage deed and on the reverse of Ex. B9, there is an endorsement saying that the mortgage was discharged.

It is also relevant to note that Ex. B9 mortgage deed appears to have been executed on 4.9.1942 by Subbiah Devar and Thangaiah Devar in favour of one K. Subbiah Devar and not in favour of Kaliammal. On the reverse of the first sheet, this Court is able to find an endorsement saying that the mortgage was discharged completely. Therefore, there would not be any impediment for Subbiah Devar to execute the sale deed in respect of his share.

D.W.1 has also admitted that he did not know as to whether there was any partition between Subbiah Devar and Thangaiah Devar. When such being the case, they do not have any competency to say that no partition was effected between Subbiah Devar and Thangaiah Devar.

Even if it is presumed that there was no division amongst two brothers (Subbiah Devar and Thangaiah Devar) either under a family arrangement or under any oral partition or otherwise, the remedy of the defendants could only be to file a suit.

From the materials available, this Court is able to find that with reference to the well, though it is stated in Ex. A1 that Ganapanthyammal is entitled to 3/8 share in Ex. A8 settlement deed executed by Ganapathyammal in favour of the plaintiffs 1 and 2, it is stated as if she is entitled to 1/2 share in the Well, i.e., 4/8 share.

This has also been questioned by the lower appellate court in its judgment.

In this connection, the lower appellate court should have considered the fact that Subbiah Devar and Thangaiah Devar were jointly entitled to 1.81 cents purchased under Ex. B8 and therefore, what was sold by Subbiah Devar under Ex. A1 to the mother of the first plaintiff was 90.5 cents exactly half of 1.81 cents and therefore, the appellants 1 and 2 would be reasonably entitled to an equal right in the well comprised in survey number 47/1 and that it cannot be 3/8 share as per the sale deed under Ex. A1.

As discussed in the forgoing paragraphs, though the learned First Appellate Judge has given a finding in favour of the plaintiffs upholding Ex. A1 sale deed, the relief of declaration ought not to have been denied simply because Ex. A8 settlement deed carried excess land.

As argued by Mr. S. Subbiah, learned counsel appearing for the plaintiffs, it is a settled proposition of law that no relief could be granted without any pleadings. But in so far as the present suit is concerned, the entire pleadings of the plaintiffs proceeded on the basis that the plaintiffs 1 and 2 are entitled to property described under ''A'' Schedule and that the property described under Schedules B, C, D and E form part of Schedule ''A'' and that those properties described under B, C, D and E Schedules were respectively sold to the defendants 3 and 4, 5 and 6, 7 and 8 and 9 and that the properties described under schedules B, C, D, and E are in possession and enjoyment of the respective purchasers/plaintiffs and therefore, they are entitled to the relief of declaration and enjoyment as prayed for in the suit.

This court does not find any infirmity in the judgement and decree of the trial court as it has correctly decreed the suit as prayed for.

As contemplated under Section 55 of the Transfer of Property Act, the plaintiffs 1 and 2 being the vendors of the plaintiffs 3 to 9 are bound to protect the rights of the purchasers and therefore, any decree in favour of the vendors, namely, the plaintiffs 1 and 2 would definitely enure to the benefit of their purchasers and all the benefits attached to such contract of sale annexed to the property shall go with the interest of the purchasers.

Keeping in view of the above facts, this Court finds that the lower appellate court without giving proper consideration to the materials available on record has proceeded to allow the appeal reversing the judgment and decree of the trial court, which is absolutely perverse in nature and therefore, it is liable to be set aside.

In the result, the second appeal is allowed. The judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored. However, there will be no order as to costs. Connected M.Ps. are closed.