Sr. Potti Nayakar vs Suppammal and Another

Oldfield, J.—The first question this case is whether any of the conditions specified in Section 115 of the CPC for the exercise of our

revisional powers are established. We can of course proceed only on the facts as found by the lower Court; and shortly the decision on the facts

found is that a trespasser, who enters on possession of property sold in court sale, before the sale took place "" holds an interest in that property by

virtue of a title acquired before the sale,"" and is entitled to apply under Order XXI, Rule 89. If, as petitioner contends, the lower Court has used

the powers conferred by the rule on the application of a person, who has not the legal character specified therein, such use of powers would be the

exercise of a jurisdiction not vested in it by law. The present case in fact closely resembles in this respect Sundaram v. Mausa Mavuthar 63 Ind.

Cas. 937 ; 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29 M.L.T. 269 : (1921) M.W.N. 272 Following that authority I hold that petitioner''s

contention if established, will justify interference in revision.

It is said next that the lower court reached its finding in favour of the respondents possession in the absence of or without considering evident.

This is incorrect, since there is evident on the point on record and the judgment contains are reference to it

Turning now to the question which arise with reference to the lower court jurisdiction whether a trespasser in possession has an interest in

properly in virtu of a title acquired before the sale, I hold that he has not. We have been shown several authorities for holding that persons

possessing various legal characters have been recognised as entitled to apply under Rule 89, or u/s 310-A of the former Code. But it is useless to

refer to them in detail, since none deals with the case of a mere trespasser or lays down any general principle by which claims to the application of

the rule Can be tested. Other cases relied on by respondents, as for example Naraycm Vasudemcharya Kathi v. Amgaude Malagaude 62 Ind.

Cas. 104 : 45 B. 1094 : 23 Bom. L.R. 455. and Narayan Kutti Qownden v. Pachiammal 15 Ind. Cas. 206 : 36 m. 426 : 11 M.L.T. 174 : (1912)

M.W.N. 353 : 22 M.L.J. 364 are irrelevant, since they deal either with the right to reimbursement u/s 69 of the Indian Contract Act for a payment

actually made, or with the nature of the interest contemplated in Section 91 of the Transfer of Property Act.

The case being bare of direct authority, its difficulty is enhanced by the fact that the words of the rule under construction are very general.

Respondents argue that the right of a trespasser in possession is usually and no doubt conveniently described as a possession title and that to adopt

one out of many descriptions of it ""It has the right to maintain his possession against all the world except the rightful owner, he can sue his ejectment

and recover possession not merely in trespass from any person who subsequently dispossesses him, unless the latter is the real owner or claims

under him, or justice ties under his authority; proof by the defendant that the real title is outstanding would be no defence. In fact the prior

possession is itself a root of title and the prior possessor has all the rights of a true owner except against the owner himself. Subbayya Pandaram v.

Mahomed Musthapa Maraoayar 40 Ind. cas. 50 : 32 M.L.J. 93 : 21 M.L.T. 62 : 5 L.W. 690. These dicta may be acoepted as founded on Asher

v. Whit loch (1866) 1 Q.B. 1 : 35 L.J.Q.B. 17 : 11 Jur. 925 : 13 L.T. 254 : 14 W.R. 26. and the extract from Pollook and Wright on possession

quoted with approval therein by Lindley, L.J. But in that case the conflict was between persons successively in possession and throughout the title

was referred to as valid only against others than the real owner. In a case at first sight of conflict between a person in possession and the real

owner, Ex-parte Winder (1877) 6 Ch. D. 696 : 46 L.J. Ch. 572 : (1877)25 W.R. 768 the representatives of the former no doubt established their

claim against the representative of the latter to the purchase money of the land which was in Court, under the Land Clauses Consolidation Act,

1845, Section 79. But it is material, firstly that they did so only after the real owner had been out of possession long enough to lose his rights,

although no doubt their own prescription was not complete when the company acquired the land and took possession; and secondly that as

Section 79 of the Act provides the person in possession is, until the contrary is shown, to be deemed the person entitled to the money. On the

other hand, at an earlier stage in the same transactions, when the statutory period had not elapsed and the real owner was not represented on the

record, the farmer''s title was regarded in Ex-parte Hollingsworth (1871) 24 L.T. 347 : (1871)19 W.R. 580 as only inchoate and as conferring no

right to the purchase money. These oases accordingly give no countenance to the claim of a trespasser with an incomplete prescription when the

title of the real owner is in question, as it is under Rule 89 for the purpose of the present case. For the proceedings between the parties to the

decree and the purchaser are on the footing that it is the right, title and interest of the judgment debtor that are being sold. That is subject no doubt

to any derogation from full ownership due to encumbrances or the like, but not to the recognition of a claim which the law had always refused to

recognize as valid against one party concerned, the debtor. Some attempt was made in argument to meet this by the suggestion that a person able

to establish his full ownership against the debtor, is entitled to apply under the rule. But if that is so (a point, on which I offer no opinion) and such a

person is entitled not only to proceed under Order XXI, Rule 58 or 100 or generally by suit, but also to pay the decree amount, nothing applicable

to the facts before us follows. For such a claimant must be allowed to pay, because in the words of Rule 89 he owns the property "" and his claim is

of a different kind from that now under consideration.

In Sundaram v. Mamsa Mavuthar 63 Ind. Cas. 937 : 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29 M.L.T. 269 : (1921) M.W.N. 272 an

attempt was made with reference to previous decisions to explain the necessity for adoption of the wider language used in the present Code and by

me to suggest its origin. Bat none of those decisions justifies any application of that language as wide as that now proposed. The rule being one of

procedure some weight may be given to the considerations that it can be of no advantage to the debtor if the Court recognizes a person who is

prescribing against him and cannot be supposed to be offering to pay for his benefits, much less in virtue of any arrangement within him; and that it

would deter bidders and enhance the uncertainty to which Court sales are at present subject, if the purchaser were liable to be deprived of the

benefit of his purchase or could obtain it only after a lengthy and expensive enquiry into so indefinite a matter as bare possession.

I would accordingly allow the Civil Revision Petition setting aside the lower Court''s order and dismissing the petition before it with costs

throughout.

Venkatasubba Rao, J.

The properties in dispute were attached by the petitioner before us who was the decree-holder who brought them to sale and purchased them.

The daughters of the judgment-debtor who are the counter-petitioners applied under Order XXI Rule 89 to have the sale set aside and they

deposited in Court the requisite amount. They claimed that their father the judgment-debtor had become a sanyasi and that they took the property

as his heirs; or in the alternative that their father had made an arrangement in pursuance of which he gave his properties to them before he left his

house and disappeared.

The Subordinate Judge found on the evidence that the case of the daughters on these two points was not made out but he regarded the

daughters as trespassers who took possession the property prior to the execution sale and he held that the daughters as trespassers had sufficient

interest in the property to entitle them to make an application under Order XXI Rule 89. It is contended on behalf of the petitioner who is the

decree-holder and auction purchaser that on the finding of the Subordinate Judge the daughters had no right to make an application under Order

XXI Rule 89.

Under this rule the application may be made by a person either owning the property or holding an interest in the property by virtue of a title

acquired before the execution sale. Do the petitioners hold such an interest in the property as to entitle them to the benefit conferred by this rule?

Rule 89 corresponds to Section 310(a) of the Civil Procedure Code, Act 14 of 1882. The words.

any person either owning such property or holding an interest therein by virtue of a title acquired before such sale.

have been substituted for the words

any person whose Immovable property has been sold. The terms of the present rule are much wider than those of Section 310(a) and no useful

purpose will be served by referring to the decisions passed under the CPC of 1882. The object of the Legislature was certainly to widen the class

of persons on whom this right is conferred. In the first place, it is evident that it is not only the judgment-debtors who are sought to be protected by

this rule. It has been argued on behalf of the auction-purchaser that Section 310(a) and Order XXI, Rule 89 were introduced in the interests of the

judgment-debtors with a view to afford them protection against loss of their properties at Court sales for inadequate prices, and the observations

of Sir John WaMis, the late Chief Justice in Sundaram v. Mamsa Mavuthar 63 Ind. Cas. 937 ; 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29

M.L.T. 269 :( 1921) M.W.N. 272, have been relied upon. As a rule, there can be no doubt that this provision will be greatly taken advantage of

by judgment-debtors, but there is nothing in the rule to limit its application to them. Some cases were cited to us by the petitioner''s Vakil for the

purpose of showing that an owner of property, who does not derive a title from the judgment-debtor, has a right to apply under Rule 89. As this

proposition has not been seriously disputed, it is unnecessary to refer to the authorities. It is also well established that a person having a lesser

interest than full ownership, such as a mortgage, is also entitled to apply under this rule. The interest of the applicant may be that of a lessee, and

cases may be conceived where the applicant may possess other kinds of interest.

Is the interest possessed by a trespasser such as to entitle him to take advantage of this provision?

I am satisfied that such interest comes clearly within the terms of this rule. The words

holding an interest therein by virtue of a title acquired before such sale.

would seem to be equivalent to

holding an interest therein acquired before such sale.

It is difficult to imagine what the significance of the words by virtue of a title, is in connection with the portion of the rule which refers to the

applicant holding an interest in the property. If the words by virtue of a title were absent in the section, very little difficulty would exist in holding

that the rule would cover the case of a trespasser. The question then is, is the position altered by reason of the words by virtue of a title "" appearing

in this rule?

In Ex parte Winder (6) a possessor without title agreed with a Railway Company for the sale of land which he had occupied for a time short of

the period of limitation. He failed to show a good title. The money was paid into Court under the Lands Clauses Consolidation Act and the

company executed a deed poll under the same Act to vest in themselves all the estate and interest of the vendor. After the expiration of the

statutory period, the representative of the true owner claimed the purchase money. Hall V.C. held that the money represented the actual right and

interest of the vendor and, as against the representative of the true owner, persons claiming under the vendor were entitled to the amount paid into

Court by the company. The Vice-Chancellor refers to the person who had possession without title as being interested in the property and as having

acquired a title by possession. I give the following passages from his judgment:

As a reasonable foundation for dealing with the case, we must, I think, start with this principle, that as far as we can, in applying these sections, we

must not let the compulsory taking of the land by the company do injustice to any person who may be interested in the property which the

company is authorised to take.

In this case the party who claims to have the fund paid out had acquired a title by possession of this property for nearly the time which would have

operated as a bar to a claim by anybody else.

The right of a possessor is referred to as a most valuable right and interest which could have been sold in the market although he had not yet the full

statutory title.

In this judgment the expression ""possessory title is also used arid in negative the contention of the representative of the true owner the Vice

Chancellor observes as follows :

The argument which has been addressed to me involves this, that because he (the possessor without title) had not, at the moment the company

took possession, got a complete title by reason of the period of twenty years not having then expired, the effect of the Act of Parliament was

summarily to deprive him of that which certainly was his property subject to the contingency of the real owner turning up and making a claim within

half a year from the period when the company intervened and took the property.

In Asher v, Whitlock (1866) 1 Q.B. 1 : 35 L.J.Q.B. 17 : 11 Jur. (N.S.) 925 : 13 L.T. 254 : 14 W.R. 26. it was held that ""A person in possession

of land without other title has a devisable interest; and the heir of his devisee can maintain ejectment against a person who has entered upon the

land, and cannot show title or possession in any one prior to the testator."" Cookburn, C.J., says

But I take it as clearly established, that possession is good against all the world except the person who can show a good title ; and it would be

mischievous to change this established doctrine.

Again, referring to the interest of the person in possession, be says,

All the old law on the doctrine of diseasing was founded on the principle that the disease�s title was good against all but the disease. It is too

clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment,

Having thus dealt with the devisor himself the learned Chief Justice deals with the position of the devisee,

What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world

but the true owner.

Dealing with the heir-at-law of the devisee the learned Chief Justice observes,

The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and

so therefore can her heir, the female plaintiff.

He concludes his judgment with the observation,

on the simple ground that possession is good title against all but the true owner, I think the plaintiff is entitled to succed, and that the rule should be

discharged.

In the two oases referred to-by me the word "" title, "" is used to describe the interest of a possessor of land who is not the owner. Pollock in

Possession in the common Law, speaks of possession.

as a substantive right in the nature of property, valid against all merely extraneous intrusion

and he says

that a possessor acting as owner has not only a personal interest, but a title which is effective against all outsiders, and enures to the benefit of all

who may hereafter be able to show a title derived from it by any form of bequest, devolution, or conveyance, appropriate to the nature of the

subject-matter"" (Edition of 1888 p. 23).

Referring to the rights inter se of successive independent occupiers who are all wrongdoers as against the true owner, Pollock says

Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the

incidents and advantages of a true title.

And he comes to the conclusion that the first possessor has a better title than a subsequent possessor and observes,

possession is good title against all but the true owner. (See pages 95 and 96).

Pollock speaks of a "" possessory title "" and also uses the expression ""possessory interest."" I may quote another passage from the same learned

writer:

It seems to me that there is not any real authority for allowing a mere wrong-doer to set up an extraneous title paramount against a possessory title

prior to his own entry.

This view has been taken by this Court in Subbaiya Pandaram v. Mahamed Mmthapa Maracayar 40 Ind. cas. 50 : 32 M.L.J. 85 : 21 M.L.T.

62 : 5 L.W. 690

There is no mention in the rule in question either of judgment-debtor or of persons deriving title from him. If an applicant under this rule has

disputed the judgment-debtor''s title to the property, that will not be a ground, in my opinion, to disentitle him to relief. If the judgment-debtor takes

no steps to save the property and if the party who is disputing his title thinks it worth his while to apply, will the Court refuse to recognize his right

on the ground that by doing so it will be recognizing a claim against the judgment-debtor? Whatever the relations between the judgment-debtor and

the applicant inter se may be, so long as the latter is able to satisfy the Court that he fulfils the conditions laid down by the rule, it seems to me that

he is entitled to invoke this provision for his benefit.

Again, can it be said that the legislature intended to exclude for instance a person who has been in possession of the property by virtue of a

purchase or a gift from the judgment-debtor, but who is unable to make out a title against the latter by reason of the purchase or gift not having

been by a registered instrument? If the vendee or done is in possession for the full period of limitation he becomes the owner not because of the

sale or the gift but by reason of his adverse possession for the stator period. Will it be said that he cannot apply under this rule before he obtains

the full statutory title?

We have not been referred to any case which has decided this point under consideration either under the old Code or under the present Code.

None of the cases cited before us seems to give us any assistance in deciding this question.

Narayan Vasudeoacharya Kutti v. Am-ganda Malaganda. 62 Ind. Cas. 104 : 45 B. 1094 : 23 Bom. L.R. 455. and Narayana Kutti Goundan

v. Pachiammal 15 Ind. Cas. 206 : 36 m. 426 : 11 M.L.T. 174 : (1912) M.W.N. 353 : 22 M.L.J. 364, which were relied upon by the petitioner

have very little bearing upon the point as they are cases which deal with the expression "" interested in the payment of money "" occurring in Section

69 of the Contract Act.

Having held that, in my opinion, as a matter of construction of this rule, a trespasser can invoke for his benefit the provision contained in rule

89, I shall proceed to examine the objections suggested to the applicability of this rule to the case of a trespasser on the ground that by permitting

him to avail himself of this benefit a hardship will result to decree-holders and auction purchasers and also on the further ground that dishonest

trespassers will be encouraged to make applications under this rule and defeat the rights acquired under Court sales. The answer seems to, be

simple. Under the rule it is only persons fulfilling certain conditions that can make an application and further the applicant must deposit in Court for

payment to the decree-holder the amount specified in the proclamation of sale and for payment to the auction-purchasers a sum equal to five

percent. of the purchase money. There is thus a sufficient safe-guard provided in the interests of decree-holders and auction-purchasers. As a

prerequisite to the obtaining of an order under this rule, the applicant must deposit in Court not only the entire decree-amount but also a sum to be

paid to the disappointed purchaser. Unless the interest which the applicant possesses in the property is at least equivalent to what may be

represented by the amount he is required to deposit into Court, it is not likely that he will seek to avail himself of the benefit conferred by this

provision. It has been suggested that, if a man has possession before the sale of the property even for a day, he will be entitled to apply under this

rule if the view that I have taken is correct. But every occupier is bound to satisfy the Court that he has an interest by virtue of a title acquired

before the sale; and whether the occupation of the applicant amounts to possession is a question of act to be decided in each case. Ex-hypothesi,

the applicant is a trespasser with a possessory title which the statute of limitation has not operated to make absolute, and the title of the owner is

not extinguished but is outstanding and an order made under Rule 89 does not profess to adjudicate upon the adverse claim to the property in

question. If, therefore, a person, who has been in adverse possession as against the true owner, say for only a month, considers that the interest he

possesses in the property warrants his depositing into Court the amount specified in the rule and applying for the setting aside of the sale, although

he runs the risk 6i being turned but by the true owner the day after the sale has been set aside, I fail to see why such an applicant should not be

able to avail himself of this rule. As against the case of a person who having been in wrongful possession only for a day or a month, applies under

this rule, there is the case of a party who has acquired a title by possession for almost the statutory period subject to the contingency of the real

owner turning up and making a claim, say within three months from the period when the sale in execution of the decree takes place. The hardship

that will be occasioned to such a trespasser by negative his right to apply under this rule will be very much greater than the hardship that may result

to a disappointed auction-purchaser who loses the property purchased at the instance of a person who has been in possession for a very short

period.

I would for these reasons hold that the order of the Subordinate Judge is right and dismiss the Civil Revision Petition with costs.

As, however, my learned brother would Confirm the lower Court''s order, the Civil Revision Petition must u/s 98, Civil Procedure Code, be

dismissed with costs.