Suseela and Others vs Ramasami Gounder and Others

A. Ramamurthi, J.—The unsuccessful plaintiff in O.S. No. 97/85 and defendants 2 and 3 in OS No. 96/85, on the file of the Sub Court

Namakkal have preferred these two Second Appeals, aggrieved against the judgment and decree made in AS 279/85 and AS 91785, on the file

of the District Court Salem, reversing the judgment and decree of the trial Court dated 31.7.1935. The case in brief is for disposal of both the

appeals are as follows:-

The plaintiff in O.S. 97/85 filed the suit for recovery of possession of the suit property. It originally belonged to one Kattiyanna Gounder and he

executed a deed for maintenance in favour of his mother Kuppayammal on 10.7.1958. Since Kattiyanna Gounder did not provide maintenance as

per the deed, she filed O.S. No. 1020/74 for arrears of maintenance in the Court of the District Munsif, Namakkal, which was subsequently

transferred and renumbered as OS 332/75 on the file of the Sub Court, Salem. The first defendant herein was the third defendant in that suit. He

set up title in himself under a revenue sale and claimed priority over the maintenance charge created in favour of Kuppayammal. However, the suit

filed by Kuppayammal was decreed on 24.4.1976. As against the said decree, an appeal in A. 382/76 was filed and the same was also dismissed.

When the suit was pending, the first defendant created a sham and nominal lease deed in favour of the defendants 2 and 3 on 26.8.1976. The lease

never came into effect and the first defendant continued to remain in possession of the property. The lease is hit by principle of lis pendens. The

plaintiff had purchased the suit property in the Court auction sale in EP 20/79. The property was sold on 25.4.1979 in favour of the plaintiff for a

sum of Rs. 20,030/-. The sale was confirmed on 11.10.1979. The lease created in favour of the defendants 2 and 3 by the first defendant is not

binding upon the plaintiff and hence the suit.

The first defendant filed a written statement contending that Kattiyanna Gounder had brought into existence a maintenance deed in favour of

Kuppayammal collusively to defeat his rights. The decrees in O.S. Nos. 332/75 and 410/73 are all collusive and the first defendant had purchased

the suit property, free from all encumbrances.

Defendants 2 and 3 filed a written statement and claimed that they were not parties to the earlier proceedings and as such, those decrees are not

binding upon them. They are lessees under the first defendant under a lease deed dated 26.8.1976. They are in possession and enjoyment of the

properties as lessees and are entitled to claim benefit under the Tamil Nadu Cultivating Tenants Protection Act. The plaintiff is only a subsequent

purchaser and the first defendant was competent to execute the lease in favour of them. Moreover, the plaintiff had purchased the suit property

subject to the leasehold rights of these defendants and the plaintiff cannot question the lease.

The plaintiffs in O.S.96/85 filed the suit for permanent injuction. They are defendants 2 and 3 in O.S.97/85. They claimed relief of injunction on

the ground that they are lessees in the property.

The second defendant in this suit and the plaintiff in the other suit filed written statement raising the very same contentions that he has purchased

the suit property in the Court auction sale and the lease is not binding upon him and the lease is also hit by lis pendens and the lessees are hot in

possession of the property.

The first defendant in that suit is the first defendant in the other suit also. The third defendant is the husband of the second defendant and since

they have reiterated the very same averments in the other suit, it is unnecessary to reproduce the same.

The trial Court framed 4 issues in O.S.97/85 and 3 issues in O.S. 96/85. Both the suits were heard together and the evidence recorded in

O.S.97/85 is treated as evidence in the other case also. On behalf of the plaintiff PW-1 was examined and Ex.A-1 to A-16 were marked and on

the side of the defendants DW-1 was examined and Ex.B-1 to B-2 were marked. The trial Court dismissed O.S. 96/85 and decreed O.S. 97/85

and aggrieved against this A.S. 279 of 1985 and 91 of 1986 were filed in the Court of District Judge, Salem and the learned Judge after hearing

the parties allowed A.S. 279/85 and set aside the judgment and decree of the trial Court in OS 97/85 and dismissed the suit. A.S. 91/86 was

allowed and the judgment and decree of the trial Court in O.S. 96/85 was set aside and the suit was decreed. Aggrieved against this the present

two Second Appeals are filed.

At the time of admission of these two Second Appeals, the following substantial question of law was framed:-

Whether the lower appellate Court was right in dismissing the suit on the ground that the same is barred by limitation under Article 134of the

Schedule to the Limitation Act, 1963?

The property involved in both the appeals are one and the same. The parties are also more or less same and as such, a common judgment is

pronounced. The parties will be hereinafter referred to as they are described in O.S. 97/85 to avoid confusion.

The plaintiff filed the suit for recovery of possession of the suit property from the defendants, based upon the sale certificate, Ex.A-1 dated

25.4.1979 issued in her favour in E.P. 20/79 in OS 332/75, on the file of the Sub Court, Salem. The suit properties are punja lands comprised in

S. No. 33/2, having an extent of 2.18 acres and S. No. 33/3 having an extent of 1.95 acres of Navani Village in Namakkal Taluk. Originally these

properties belonged to one Kattiyanna Gounder and he executed deeds of maintenance in favour of his mother and sister. Based on the strength of

the documents dated 10.7.1958, maintenance suit was filed and after the decree the properties were sold in auction.

The first defendant contended that notwithstanding the maintenance deed executed by Kattiyanna Gounder, in favour of his mother and sisters,

he is entitled to the suit properties, free of all encumbrances in view of the fact that the property has been sold in revenue auction and the properties

are vested with him free of all encumbrances. It is necessary to state that the sale in favour of the first defendant was subject to maintenance charge

created in favour of Kuppayammal. Similarly, the plaintiff is the Court auction purchaser when the property was brought in Court auction for non

payment of maintenance amount, the first defendant did not pay the decree amount due to Kuppayammal and therefore, this property was sold in

the Court auction for a sum of Rs. 20,030/- and Ex. A-1 is the Sale Certificate. The sale was also confirmed. It is therefore evidently clear that the

plaintiff is claiming right to the property by virtue of the Court auction sale whereas the first defendant claims right in the property by virtue of

purchase made in the revenue auction at an earlier date.

Admittedly, the plaintiff has not taken proceedings within one year from the date of Court auction or the issue of Sale Certificate. She had filed

the suit only for recovery of possession on the ground that the first defendant continued to be in possession of the property and the lease created in

favour of the defendants 2 and 3 are sham and nominal. But the defendants 2 and 3 claimed that they are in possession of the property by virtue of

Ex.B-1 lease deed dated 26.8.1976, executed by the First defendant in their favour. The lease is for a period of five years. In short, the defendants

2 and 3 are claiming benefit under the provisions of Tamil Nadu Cultivating Tenants Protection Act. But it is represented by the plaintiff on the

ground that the lease deed was brought into existence during the pendency of O.S.332/75 and therefore it is not binding upon the plaintiff. But the

plaintiff herein was not a party in the earlier suit. Moreover, when the lease deed was executed in favour of the defendants 2 and 3, the plaintiff has

not obtained title to the property by purchase. At the time of trial, the title was vested only with the first defendant and hence the first defendant has

got a valid right to execute lease in favour of the third party as per Ex.B-1. But it is necessary to keep in mind that the sale in favour of the first

defendant was only subject to the claim of maintenance which was a prior encumbrance.

The learned counsel for the appellants contended that the defendants 2 and 3 cannot claim any benefit under the alleged lease deed inasmuch

as the same was executed during the pendency of litigation. The alleged tenancy in their favour is a make believe affair and was the mere factum of

creation of lease deed is not sufficient to confer title under any Act. The official records maintained establish beyond doubt that the first defendant

continued in possession notwithstanding the alleged lease created and the defendants 2 and 3 are mere name lenders. The decision reported in

Muthaiah Chettiar Vs. Krishnaswami Gounder (died) and Others, has no application. The entry in record is one got collusively and fraudulently

without impleading the appellant, who is the owner of the land. During 1983, the first defendant had no right or locus standi to participate in any

proceedings. The lower appellate Court also erred in allowing documents created subsequent to the filing of the suit, without even considering the

authenticity. The Court erred in holding that the suit filed by the appellant is barred by limitation under Article 134of the Limitation Act. The

appellate Court also failed to see that since the sale was confirmed and Sale Certificate was issued subject to the alleged tenancy rights of the

defendants 2 and 3, there is no question of Article 134standing in the way of the appellant to file the suit. The lower appellate Court also erred in

granting induction in favour of a person who failed to establish actual possession and enjoyment and cultivation.

The lower appellate Court came to the conclusion that the plaintiff ought to have come to the Court within one year of her Sale Certificate, as

per Article 134of the Limitation Act and a separate suit for recovery of possession based upon Articles 136and 137of the Limitation Act is not

maintainable. The lower appellate Court also came to the conclusion that the defendants 2 and 3 are cultivating tenants of the property, entitled to

claim benefits under the provisions of Tamil Nadu Cultivating Tenants Protection Act. It is only under such circumstances, the lower appellate

Court dismissed O.S. No. 97/85, relating to relief for recovery of possession. It however decreed O.S. 96/85 and granted relief for permanent

injunction in favour of the defendants 2 and 3 as cultivating tenants of the property. As adverted to, Ex.A-1, the Sale Certificate itself shows that

the sale was subject to lease in favour of the defendants 2 and 3. But, however the plaintiff seeks to recover possession I notwithstanding the

encumbrance mentioned in the Sale Certificate. She has to first prove that the lease deed Ex.B-1 was sham and nominal document. The first

defendant was competent to execute the lease deed in favour of the defendants 2 and 3, at the relevant point of time. The learned counsel for the

plaintiff contended that notwithstanding Ex.B-1, the first defendant continued to be in possession of the property and the less was never given

effect to. The plaintiff had produced Ex.A-6 and A-7, Adangal extract for 1386 and 1387 faslis, corresponding to the; years 1979 and 1977

which bear the name of the first defendant only. The second defendant examined as DW-1 also staled that even in the subsequent adangal

accounts their names do not find a place and first defendant''s name is found as person in possession of the suit property. It is stated that the

defendants 2 and 3 have not let in evidence to show that they are in possession, pursuant to the execution of Ex. B-1. But in the appellate Court,

Ex.B-3 and B-4 were marked and similarly Ex.A-7 and A-8 were also marked. When the Sale Certificate itself was issued in favour of the

plaintiff, subject to right of tenancy, it has to be given much credence. It has to be found out whether the plaintiff can file a suit for recovery of

possession after having failed to file EP for delivery of possession, within a period of one year from the date of sale or issue of Sale Certificate.

Ex.B-2 is the order of Tenancy Record Officer, passed in T.R. 3/83 dated 18.4.1983. Now the defendants 2 and 3 filed a petition to record

their names as cultivating tenants and admittedly, the first defendant alone was made a party and obtained an order. The plaintiff was not a party

and hence it is stated that it will not be binding upon the plaintiff. The first defendant being the purchaser under Revenue auction, is entitled to lease

out property in favour of the third party and this has been done even prior to the Court auction sale in EP 20/97. It is only if the plaintiff is able to

establish that the first defendant has no right whatsoever to execute any lease deed she can seek for recovery of possession. No specific reason is

also given by the plaintiff for not having taken proceedings to recover the property within a period of one year. The question whether an

independent suit can be filed by the plaintiff is also a matter to be considered.

It is seen from Ex. A-7 and A-8 that a petition has been filed under Order 21, Rule 95 for delivery of possession. But that application has been

returned. It has not been pursued thereafter. However, the learned counsel for the plaintiff contended that even assuming that the Court Auction

Purchaser has failed to take steps to recover property in a period of one year, yet he is entitled to file a suit for recovery of possession. In support

of his contention, he relied on Pattam Khader Khan Vs. Pattam Sardar Khan and Another, wherein it has been observed as follows:-

There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one year limitation, now

prescribed under Article 134of the Limitation Act, 1963, in substitution of a three year period prescribed under Article 180of the Indian Limitation

Act of 1908, is reflective of the legislative policy of finalising proceedings in execution as quickly as possible by providing a quick forum to the

auction purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather

than from the date of issuance of the sale certificate, on his failure to avail of such quick remedy the law relegates him to the remedy of a suit for

possession in a regular way.

This decision has been relied upon by the plaintiff in order to show that even if the Court auction purchaser failed to take proceedings within a

period of one year, he is entitled to file a suit for recovery of possession.

The learned counsel for the respondents relied on Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Others, . It has been held as

follows:-

As a result of amendment of Section 47, the purchaser at a sale in execution of a decree, whether he is the decree holder or not, is unquestionably

a parry to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction purchaser and the judgment debtor

must be determined by the executing Court and not by a separate suit.

This decision is applicable to the facts of the present case.

It has been held in 1979 (II MLJ 393 = 91 L.W. 292 (Ganesa Vanniar v. K Vengusami and Others) that the plaintiff was entitled to protection

under the Cultivating Tenants Protection Act notwithstanding the factual position that the lease was granted at a time when the mortgage suit was

pending and although prima facie it might appear that the doctrine of lis pendens could be attracted on the facts and circumstances of the case it

was held that such a doctrine, in the peculiar circumstances, could not divest, vested statutory rights, and in this view, the judgment of the Trial

Judge is so far as his finding was against the plaintiff was set aside. The principle of this decision is also applicable to the present case.

It has been held in Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, s follows:-

An application for delivery of possession of immovable property purchased in execution cannot be construed as an application for execution of a

decree for possession of property so as to invoke the provision of Article 136, Limitation Act. Merely because the auction-purchaser would be

deemed to be a party in the suit in which the decree has been passed, as provided in cl. (a) of Explanation II to Section 47of the Code, and by

virtue of Clause (B) of the Explanation II all questions relating to delivery of possession of the property shall be deemed to be questions relating to

execution, discharge or satisfaction of the decree within the meaning of Section 47, an application for delivery of possession under Order 21, Rule

95 cannot be equated with an application for the execution of a decree for possession so as to apply 12 years period of limitation as prescribed by

Article 136, Limitation Act.

This principle can also be made applicable to the case on hand.

It is necessary to state that the plaintiff ought to have taken proceedings within one year from the date of Court auction purchase or issue of

Sale Certificate. The plaintiff is not entitled to file a suit for recovery of possession. Moreover, the names of defendants 2 and 3 have already been

recorded as cultivating tenants by the competent authority. Now the civil Court cannot go into the question as to whether the entry made there is

proper and correct. When once the defendants 2 and 3 are recorded as cultivating tenants, then the civil Court cannot grant the relief of recovery

of possession, to the plaintiff also. At the same time, the defendants 2 and 3 claim that their possession is interfered with by the plaintiff and

therefore filed a suit claiming relief of permanent injunction. In my view, so long as defendants 2 and 3 claimed to be cultivating tenants in the

property, they are entitled to remain in possession unless and until they are evicted by following the due process of law. For the reasons stated

above, both the Second Appeals fail and they are dismissed and the judgment and decree of the lower appellate Court are confirmed. However,

there shall be no order as to costs.