Thirugnana Sambandam Chettiar vs Kadumbadi Naicker and Others

V. Ramaswami, J.—The defendant is the appellant. The suit out of which this second appeal arises is one in ejectment. The disputed

property is stated to be 1-14-8 cawnies equivalent to 2 acres and 52 cents of punja land said to be comprised in Paimash No. 654/1. The

defendant filed M. P. No. 12 of 1959 before the Executive First Class Magistrate, Chingleput, against the plaintiffs for an order u/s 145, Criminal

Procedure Code, on the ground that they had purchased the property under a sale deed dated 3rd February, 1958 and claiming to be in

possession thereof. On 21st October, 1959, the Magistrate upheld the defendant''s claim for possession and made the order as prayed for.

Thereafter, this suit was filed by the plaintiffs for declaration of their title to the suit property and for delivery of possession of the same.

In execution of a decree in S. G. No. 143 of 1930, on the file of the District Munsif''s Court, Chingleput, certain properties of one Shanmugha

Gramani, the judgment debtor in that case, were brought to sale. One of the items, which was brought to sale was Paimash No. 654. The extent of

this land is given as 2-4-0 cawnies corresponding to 2 acres 97 cents. One Sarangapani Iyengar purchased this property as evidenced by the sale

certificate (Exhibit A-1) dated 30th June, 1934. The brother of the Court auction purchaser sold this item. Under Exhibit A-4 dated 27th October,

1942 to one Andalammal, who in turn sold it under Exhibit A-10 dated 27th August, 1955 to the second plaintiff. The suit was filed on 2nd

November, 1959 claiming title to the property under the deed dated 27th August, 1955.

The defence was that Paimash No. 654 measured an extent of 4-2-8 cawnies, and that in an oral partition, some time in 1927. between

Shanmugha Gramani and his brother''s sons Balakrishna Gramani and Manicka Gramani, the eastern 2-4-0 cawnies was allotted to Shanmugha

Gramani and the western 1-14-8 (equivalent to 2 acres and 52 cents) was allotted to Balakrishna Gramani and Manicka Gramani jointly. After the

death of Balakrishna Gramani in 1941, Manicka Gramani, as survivor, became entitled to the entire extent of 1-14-8 cawnies and that the

defendant had purchased the same under Exhibit B-11 dated 3rd February, 1958. It was also his case that some time after the oral partition, the

property was sub-divided and the portion which was allotted to Shanmugha Gramani was comprised in Paimash No. 654/2 and that portion which

was allotted to Balakrishna Gramani and Manicka Gramani was comprised in Paimash No. 564/1. He further stated that in pursuance of his

purchase on 3rd February, 1958 under Exhibit B-11, he had taken possession and had been in possession and enjoyment of the same.

Both the Courts below held that though the sale certificate Exhibit A-1 dated 30th June, 1934 referred to the extent of property sold in Court

auction as Paimash No. 654--2-4-0 cawnies, actually the Court auction purchase was of the whole extent of Paimash No. 654, measuring 4-2-8

cawnies and that, therefore, the plaintiffs had established their title to the property. The Courts below also held that the plaintiffs had proved

possession within 12 years and that the defendant has not prescribed title by adverse possession. The Courts below further held that Shanmugha

Gramani was entitled to 4-2-8 cawnies in Pa mash No. 654, that the oral partition pleaded by the defendant was not true and that the vendor of

the defendant had no right, title or interest in the suit properties. In that view, the suit filed by the plaintiffs had been decreed.

It is seen from Exhibit A-1, A-4 and A-10, the sale certificate and the sale deeds in favour of Sarangapani Iyengar, Ardalammal and the second

plaintiff respectively, that the property that was sold was described as Paimash No. 654, measuring 2-4-0 cawnies. Patta No 97 issued to

Sarangapani Iyengar under Exhibits A-2 and A-3 gives the extent of the land as 2-4-0 cawnies and the Paimash No. as 654. The kist payable for

2-4-0 cawnies is shown in these pattas as Rs. 3-6-0 and the kist receipts in the name of Sarangapani Iyengar, which are marked as Exhibits A-18,

A-19 and A-2O, show that only Rs. 3-6-0 was paid in respect of Paimash No. 654. Subsequent to the purchase by Andalimmal, the property

was transferred to her patta No. 266, which are marked as Exhibits A-5, A-6 and A-7. In these pattas also, the extent of Paimash No. 654 is

shown as 2-4-0 cawnies, and the kist payable as Rs. 3-6-0 and she had paid the kist at that rate as shown in Exhibits A-21, A-22, and A-23 The

agreement Exhibit A-28 and the mortgage Exhibit A-9 executed by Andalammal also show the extent as 2-4-0 cawnies. Thus, in all these

documents of title, the property that was conveyed is described as Paimash No. 654, measuring 2-4-0 cawnies.

On the other hand, we have the patta Exhibit 8-3 issued to Shanmugha Gramani, which shows that Paimash No. 654 measures an extent of 4-

2-8 cawnies and the kist payable in respect of the same in Rs. 6-3-0. Certainly, therefore, on the face of it, neither Exhibit A-1, the sale certificate,

conveyed anything more than 2-4-0 cawnies in paimash No. 654, nor could the auction purchaser or the subsequent purchasers, Andalammal and

the second plaintiff, could be said to have been in enjoyment of more than 2-4-0 cawnies. The enjoyment should be only in respect of this extent of

2-4-0 cawnies, because the pattas produced and the kist receipts show that Sarangapani Iyengar and Andalammal were in possession of only 2-

4-0 cawnies and paid only Rs. 3-6-0 as kist. If really they had been in possession of the entire extent of 4-2-8 cawnies, they should have paid Rs.

6-3-0 but the kist receipts produced show that they paid only Rs. 3-6-0.

The learned Counsel for the respondents contended that the original sale deeds, Exhibit A-34 and A-35 under which Shanmugha Gramani

purchased the property, describe the property purchased as comprised in Paimash No. 654 and measuring 2-4-0 cawnies. These documents also

gave a description of the boundaries of the property conveyed. If the boundaries of the property conveyed under Exhibit A-34 and A-35, which

are also the boundaries of the property conveyed under the sale deed executed by Andalammal in favour of the second plaintiff under Exhibit A-

10, are taken into account, then not only 2-4-0 cawnies referred to therein, but also the property now in dispute, would fall within the boundaries,

and, therefore, Shanmugha Gramani should be deemed to have purchased the entire extent. But unfortunately for the plaintiffs, the sale certificate

and even the sale deed in favour of Andalammal do not give the description of the boundaries of the Paimash No. 654, and, therefore, the rule that

the boundaries will prevail over the extent referred to could not be invoked in this case.

It is next contended by the learned Counsel for the respondents that in describing the property sold in Court auction, the entire Paimash No.

654 is referred to, though the extent given does not take in the entire extent, and, therefore, Paimash No. 654 in its entirety should be deemed to

have been conveyed under the Court auction. On the other hand, the learned Counsel for the appellant argued as a point of law that when a sale

certificate mentions the extent without giving the boundaries and it was brought to sale, it shall be presumed that what was sold was only that

extent. According to the learned Counsel, it was only that extent that was notified for sale, and it was that extent which was intended to be

purchased by the Court auction purchaser, and it was only for that extent the price was paid, and, therefore, there is no scope for enlarging either

the title of the judgment-debtor or the extent of the land conveyed thereunder. Before dealing with these points, it is necessary to set out some of

the earlier and later legal proceedings that were taken in respect of the suit property. It is seen from Exhibit B-22 that after the purchase of

Paimash No. 654 by Shanmugha Gramani, taking advantage of the fact that though the boundaries included the entire extent of 4-2-8 cawnies, the

extent referred to in these documents was only 2-4-0 cawnies, the Zamindar''s agent, within whose Zamin the property was situate, purported to

sell the remaining extent of 1-14-8 cawnies to one Raghava Naicker. When Raghava Naicker claimed possession of this disputed extent,

Shanmugha Gramani claiming title to the entire extent of 4-2-8 cawnies filed O. S. No. 696 of 1913 on the file of the District Munsif''s Court,

Chingleput. This suit was decreed, accepting the title of Shanmugha Gramani to the entire extent of 4-2-8 cawnies. There appeared to have been

some trouble relating to possession of the land which resulted in the proceedings u/s 145, Criminal Procedure Code in 1922. On the Magistrate

finding that Shanmugha Gramani was in possession of the entire extent, the other party filed O. S. No. 208 of 1925, which was also ultimately

dismissed. Later Shanmugha Gramani filed O. S. No. 347 of 1931 on the file of the District Munsif''s Court, Chingleput, for declaration of his title

to Paimash No. 654 and the casuarina standing thereon, and for an injunction restraining the defendants therein from interfering with his enjoyment

thereof. Though that suit related to a number of items of properties, the defendants in that suit did not dispute the title of Shanmugha Gramani to

those items except Paimash No. 654. Even in Paimash N. 654 the defendants admitted the title of Shanmugha Gramani to an extent of 2-4-0

cawnies and disputed the claim of title of Shanmugha Gramani to a portion of 1-14-8 cawnies. Shanmugha Gramani claimed title to the entirety of

4.28 cawnies under Paimash No. 654. The trial Court, by its Judgment dated 1st November, 1932, held that the plaintiff had title only to an extent

of 2-4-0 cawnies and that he had not established his title to the remaining 1-14-8 cawnies and in that view decreed the suit in respect of that

portion. Shanmugha Gramani preferred an appeal before the Subordinate Judge of Chingleput. By his judgment dated 28th April, 1936, the

Subordinate Judge upheld the claim of Shanmugha Gramani by holding that he had title to the entire extent of 4-2-8 cawnies in Paimash No. 654.

The Court auction sale was 9th March, 1934. It is subsequent to the judgment of the District Munsif dated 1st November, 1932 and prior to the

appellate judgment dated 28th April, 1936. The learned Counsel for the appellant contended that on the day when the property was brought to

sale in Court auction on 9th May, 1934, the judgment, of the District Munsif, Chingleput, was holding the field, and, therefore, what would have

been brought to sale as on the date of auction was only 2-4-0 cawnies, and not the entire extent of 4-2-8 cawnies. The benefit of the judgment of

the appellate Court, which upheld the claim of Shanmugha Gramani to the entire extent could not be availed of for the purpose of contending that

what was sold in Court auction was the entire interest of Shanmugha Gramani in 4-2-8 cawnies.

In support of this argument, the learned Counsel relied on two Privy Council judgments reported in Abdul Aziz Khan v. Appayasami Naicker

ILR (1904) Mad. 131 : 31 I.A. 1 : (1904) 6 Bom. L.R. 7, and Ramabhadra Naidu v. Kadhiriyasami Naicker ILR (1921) Mad. 483 : 63 I.C. 708

: 48 I.A. 155 : AIR 1922 P.C. 252. In Abdul Aziz Khan v. Appayasami Naicker ILR (1904) Mad. 131 : 31 I.A. 1 : (1904) 6 Bom. L.R. 7, in

execution of a decree against the holder of an impartible zamindari, who was a member of a joint family governed by the Mitakshara law, his ""right,

title and interest,"" in the zamindari was brought to sale and was purchased by the plaintiff in that proceeding. At the time of the Court auction sale, it

was the accepted position in law that the holder of an impartible zamindari who was himself a member of an undivided family, could not alienate or

encumber the corpus of the estate, so as to bind his coparceners except for justifiable special causes. Subsequently, the Judicial Committee of the

Privy Council held that the impartible Zamindaris in the Presidency of Madras are not inalienable in the absence of proof of some special family

custom or tenure attaching to the zamindari, and having that effect. In the suit by the purchaser, it was contended that he had purchased an absolute

interest in, the estate. The Privy Council held that what was purchased by him in Court auction was the right, title and interest of the holder of the

impartible zamindari, as understood at the time of the sale, which means that only a life interest of the then holder passed by the sale, and that the

reversal of the previously accepted interpretation of the law did not and could not enlarge the estate that was purchased in Court auction. The

questions in such cases to be considered are, what did the Court intend to sell and what did the purchaser understand that he bought? Applying

this test to the case on hand, we find that on the day when the Court sale was held on 9th May, 1934, the decree of the District Munsif,

Chingleput, was to the effect that the judgment-debtor had only title to an extent of 2-4-0 cawnies. This Court should have intended to sell only this

extent, and the purchaser also should have intended to purchase only that extent. This should have been the position because even prior to the

Court sale, there were disputes relating to 1-14-8 cawnies out of the total extent of 4-2-8 cawnies in Paimash No. 654. Inspite of the fact that in

all the earlier proceedings, the total extent was mentioned as 4-2-8 cawnies and that Shanmugha Gramani was entitled to the entire extent, only an

extent of 2-4-0 cawnies was specifically mentioned in the auction sale and the sale certificate. It, therefore, follows that what was sold was only 2-

4-0 cawnies in Paimash No. 654 and it is only that extent which was purchased by Sarangapani Iyengar in the Court sale.

The other decision in Ramabhadra Naidu v. Kadhiriyasami Naicker 63 I.C. 708 : 48 I.A. 155 : ILR 44 Mad. 483, cited by the learned

Counsel for the appellant relates to a converse case. That was also a case relating to an impartible estate. The holder of the impartible estate

mortgaged the entire estate and in describing the property mortgaged, it was stated that all the private lands in the possession of the mortgagor

were also mortgaged. But on the day when the mortgage was executed, the mortgagor was not in possession of any of the private lands, and they

were in the hands of a female member of a zamindari. Ultimately, when the mortgagee obtained a decree on the mortgage and brought the

mortgaged property to sale, the female member had died, and the mortgagor came into possession of all the private lands. The Court auction sale

in execution of the mortgage decree was subsequent to the mortgagor obtaining possession of the private lands. The question for consideration was

whether the purchaser of the mortgaged property was entitled to the private lands as well, though that could not have been included in the

mortgage at the time when the mortgage was executed, in view of the fact that it was not in the possession of the mortgagor. The Privy Council

held that the relevant date for consideration was the date on which the properties were brought to sale and that, if on that date, the mortgagor had

been in possession of the private lands, the right, title and interest in those lands also will pass to the purchaser.

Both these decisions, Abdul Aziz Khan v. Appayasami Naicker 31 I.A. 1 : ILR 27 Mad. 131 and Ramabhadra Naidu v. Kadhiriyasami

Naicker 48 I.A. 155 : ILR 44 Mad. 483, are clear authorities for the position that in the case of Court auction sales what could be conveyed is the

right, title and interest as it was understood and subsisting on that day. In this case, therefore, the property that could be brought to sale was only

2-4-0 cawnies and that alone was purchased by Sarangapani Iyengar in the Court sale.

The learned Counsel for the plaintiffs relied on an admission by Manicka Gramani in Exhibit A-15 in support of his claim that he had title to the

entire extent. That was a written statement filed by Manicka Gramani is O.S. No. 116 of 1951 on the file of the Sub Court, Chingleput, which was

filed by Shanmugha Gramani against a number of defendants for declaration of his title and some other reliefs. The suit related to a number of

items, of which one is mentioned as Paimash No. 654/1 measuring 1-14-8. In the written statement filed by Manicka Gramani, he stated that he

does not claim any title in respect of any of the items in the suit. Manicka Gramani, after having admitted in that written statement that he had no

title, purported to convey the same property to the defendant herein under Exhibit B-11 dated 3rd February, 1958. 1 have no doubt that he had

no title to the property at any time and he could not have conveyed any interest in those properties to the defendants.

The plea of oral partition and allotment of the suit property in that partition to Balakrishna Gramani and Manicka Gramani has been found

against by the Courts below, and I do not find any reason to interfere with that finding. The result will be that neither the plaintiffs nor the defendant

have established any title to the suit properties. But unfortunately for the plaintiffs, this is a suit in ejectment and the defendant is stated to be in

possession on the date when ""the suit was filed. It was not the case of the plaintiffs that even apart from the claim of title by purchase, they had also

prescribed title to the property by adverse possession long prior to the trespass by the defendant alleged in the suit. Nor is there any specific

finding by the Courts below that the plaintiffs were in possession and the defendant had trespassed into the property. In fact, no issue was framed

as to the circumstances under which the plaintiffs were dispossessed or the defendant got into possession. The plaintiffs cannot therefore get a

decree on the basis that they were in possession, whether under a valid title or otherwise, and that defendant had no right to dispossess them.

The learned Counsel for the respondents states that neither in the Courts below in these proceedings nor in the various civil proceedings that

were taken prior to the Court sale, there was any enquiry into the actual extent of land available, and these proceedings proceeded on the

assumption that an extent of 4-2-8 cawnies is actually avail-able on the ground. According to the learned Counsel, only an extent of 2-4-0 cawnies

is available and that extent he is entitled to. It is, therefore, necessary to demarcate that portion of the land measuring 2-4-0 cawnies in Paimash

No. 654, which was purchased by the plaintiffs and a decree for possession should be given at least in respect of that extent, since the plaintiffs

had established his title in respect of the same. The learned Counsel for the appellant could have no objection for demarcating the 2-4-0 cawnies

purchased by the plaintiff and ordering delivery of possession to the plaintiff of that extent. There is no evidence as to when Paimash No. 654 was

sub-divided into Paimash No. 654/1 and Paimash No. 654/2 and whether the extent of 2-4-0 cawnies purchased by the plaintiffs comprised in

Paimash No. 654/1 or Paimash No. 654/2. In the circumstances, it becomes necessary that there should be a decree in the nature of a preliminary

decree declaring the plaintiffs'' right to an extent of 2-4-0 cawnies in Paimash No. 654 and for a demarcation of that extent and ordering delivery

of possession of the same to the-plaintiffs. The plaintiffs will be entitled for appointment of a Commissioner in the final decree proceedings and also

to adduce evidence to show that the property claimed to be in the possession of the defendant is the property that was purchased in Court auction.

It is needless to say that if in the final decree proceedings, the total extent now on ground in respect of Paimash No. 654 is found to be only 2-4-0

cawnies, the plaintiffs will be entitled to recovery of the entire extent. The learned Counsel for the appellant states that the appellant is not in

possession of anything more than 1-14-8 cawnies. If this extent of 1-14-8 cawnies is found to be comprised within 2-4-0 cawnies purchased by

the plaintiffs, the appellant is liable to deliver possession of only that extent, and if anybody else is in possession of the remaining extent, the

defendant would not be liable to deliver possession.

Accordingly, there will be a preliminary decree in the suit as stated above. The parties will bear their respective costs throughout. No leave.