- (1.)Defendant in O.S.No.404 of 1982 on the file of Principal District Munsif's Court, Kovur, Nellore District is the appellant in this Second Appeal. Respondent is the plaintiff in the said suit. For the sake of convenience, the parties would hereinafter after be referred as they are arrayed in the trial Court.
(2.)The suit is filed for a declaration of the title of the plaintiff to the plaint schedule property. The case of the plaintiff is that defendant in execution of the decree obtained against him and his wife in O.S.No.54 of 1971 on the file of the court of the Subordinate Court, Kavali on the foot of a promissory note executed by them in his favour filed E.P.No.45 of 1975, which was dismissed consequent on the promulgation of A.P. Ordinance No 25 of 1976. Again after the coming into force of A.P. Act 7 of 1977, defendant filed E.P.No.7 of 1979 on 30-1-1979 and got attached the plaint schedule property belonging to him, and Ac. 1-21 cents of land belonging to his wife, but brought the plaint schedule property only to sale. Since he does not own any property other than the plaint schedule property, which is Ac.0-70 Cts of wetland, and is personally cultivating the same he is a 'small farmer' within the meaning of A.P. Act 7 of 1977 and so the decree obtained by the defendant against him in O.S.No.54 of 1971 stood abated. Because of his illness he remained ex parte in E.P.No.7 of 1979 and so there was no opportunity for him to claim the benefit of A.P. Act 7 of 1977 in the said E.P. Taking advantage of his absence, defendant by playing fraud on the court, brought the plaint schedule property to sale and purchased the same in court auction, suppressing the fact of his being a 'small farmer' within the meaning of A.P. Act 7 of 1977. Hence the said sale is void and inoperative and so he continues to be the owner of the plaint schedule property. The case of the defendant is that after obtaining a decree in O.S.No.54 of 1971 against the plaintiff and his wife he filed E.P. No.45 of 1975, but in view of the promulgation of A.P. Ordinance 25 of 1976, staying execution of decrees above Rs.1,000.00, he did not press the said E.P. After the coming into force of A.P. Act 7 of 1977 since he is a small farmer and the plaintiff is not, he filed E.P.No.7 of 1979 to execute the decree obtained by him in O.S.No.54 of 1971 and got attached the plaint schedule property belonging to the plaintiff and Ac.1-21 cts. belonging to his wife. Plaintiff and his wife, having received summons in the said E.P.No.7 of 1970, chose to remain ex parte at Rule 22 stage. Thereafter, sale notices were also served on them. They engaged an advocate but did not choose to file a counter and so, the court ordered further steps and ordered sale of the plaint schedule property. In that sale he after obtaining permission to bid, participated in the auction and became the highest bidder. The amount due to him as per E.P. was set off, full satisfaction of the decree was recorded. The sale was confirmed on 17-12-1979 and after issuance of the sale certificate, he filed E.A.No.18 of 1980 and obtained delivery of possession of the plaint schedule property on 10-2-1980, and the said delivery was recorded on 12-2-1980. No fraud was played by him on the court. When the plaintiff, his wife and another tried to interfere with his peaceful possession and enjoyment of the plaint schedule property, he filed O.S.Mo.233 of 1980 against them seeking a decree of permanent injunction, and obtained a decree against them and so there is no cause of action for filing the suit and the suit is also not maintainable.
(3.)On the basis of the pleadings, the trial Court framed three issues and two additional issues for trial. In support of his case, plaintiff examined himself as P.W.1 but did not adduce any documentary evidence. The defendant examined himself as D.W. 1 and marked Exs.B-1 and B-2. The trial Court held that the plaintiff and defendant are not small farmers within the meaning of A.P. Act 7 of 1977 and that plaintiff is not entitled to the benefit of A.P. Act 7 of 1977, that the court sale held on 15-10-1979 in E.P.No.7 of 1979 is a valid sale and cannot be set aside, and so plaintiff is not entitled to the declaration sought or recover possession of the plaint schedule property and dismissed the suit. On appeal by the plaintiff in A.S.No.4 of 1989, the learned Subordinate Judge, Kovur, reversed the findings of the trial Court and held that the plaintiff is a small farmer but defendant is not a small farmer and hence plaintiff is entitled to the benefits of A.P. Act 7 of 1977 and so the proceedings in the E.P. in execution of the decree obtained by the defendant against the plaintiff are null and void, and decreed the suit. Hence this Second Appeal.