Velayudhan Pillai vs Arumugham Pillai Pitcha Pillai and Others

Joseph Vithayathil, J.—Plaintiff is the Appellant. The suit is for recovery of possession of property with mesne profits. The plaint schedule property is 8 cents in extent and the Plaintiffs case is that he is entitled to 7 cents out of it as per the sale deed, Ex. F, in his favour. The property originally belonged to one Appi Pillai Kolappa Pillai. For a personal decree obtained against him in O.S. No. 127 of 1103 of the Trivandrum District Court the plaint schedule property was attached and sold in Court auction along with other properties of Kolappa Pillai and purchased by the decree-holder. Nagji Puru-shotham Co., obtained delivery of possession of the property and the buildings thereunder under Exs. B and C. Ex. C, D/-22-2-1115 is the delivery kycit relating to the property and1 Ex. B dated 1-4-1115 is the delivery kychit1 relating to the buildings. According to Defendant 1 Kolappa Pillai had hypothecated this property along with other properties in favour of the Nedungadi Bank Ltd., on 7-8-1098. According to the Plaintiff, only two cents in the property were included in the hypothecation bond. Ex. V is the copy of the hypothecation bond. Nedungadi Bank instituted a suit on the basis of hypothecation bond as O.S. No. 563 of 1105 of the Nedumangad Munsiff''s Court and purchased the property covered by the hypothecation bond in Court auction. Ex. X is the copy of the decree dated 30-3-1107 and Ext. VI is the copy or the sale sannad dated 28-2-1115. When Nedungadi Bank sought to obtain delivery of possession, of the property Nagji Purushotham Co. obstructed and the bank applied for delivery of possession after removing the obstruction. The obstruction was overruled and the Bank was allowed to recover possession of the property. Ex. VIII is the copy of the order dated 5-4-1113 disallowing the obstruction.

Nagji Purushotham Co. preferred a revision petition before the High Court. The High Court confirmed the order of the execution Court by its order dated 7-7-1118. Ex. DC is the copy of the High Court order. Nedungadi bank obtained delivery of possession of, the property on 10-2-1119. Ex. A is the copy of the delivery kychit. The Bank subsequently sold the property to one Ponnamma Narayani Amma and she in her turn sold it to Defendant 1. Ex. XI dated 10-4-1122 is the sale deed in favour of Defendant 1. Nagji Purushotham Co. sold their right in the property to one Sankara Pillai under Ex. E dated 1-9-1121 and Sankara Pillai assigned his rights to the Plaintiff under Ex. F dated 29-3-1122. The Plaintiff''s case is that Defendant 5 was holding the property on lease under Nagji Purushotham Co. after the company got delivery of the property in O.S. No. 127 of 1103, that Defendants 1 to 4 are in possession of the property under Defendant 5, that two cents out of the property were sold in Court auction in O.S. 563 of 1105 and obtained delivery of by the Nedungadi Bank Ltd., that the Bank sold that right to Narayani Amma, that Defendant 1 purchased her right and that in the ''pokkuvaravu'' proceedings mutation was effected for two cents in the name of Defendant 1 and for 7 cents in the name of the Plaintiff. Since there are no well-marked boundaries separating the Plaintiff''s 7 cents from the two cents belonging to Defendant 1 the suit was filed for demarcating the seven cents belonging to the Plaintiff and for recovery of possession of the same with mesne profits from Defendants 1 to 4.

The first Defendant alone contested the suit. His case is that the whole of the plaint property was hypothecated to the Nedungadi Bank by Appi pillai Kolappa Pillai under Ex. V, that the extent of the property was by mistake stated to be only two cents, that in the decree, sale certificate and delivery kychit the whole property was included although in those documents also the mistake in the hypothecation bond relating to the extent of the property was repeated. It was also contended that Defendant 1 was originally holding the property on lease under Appi Pillai Kolappa Pillai from the year 1096 onwards, that as per the delivery in O.S. No. 563 of 1105 he was divested of possession of the property and that he subsequently attorned to Narayani Amma, the vendee of the Bank, and held the property under her until he purchased her right in 1122 under Ex. XI. The allegation in the plaint that Defendant 5 was holding the property on lease and that Defendants 1 to 4 were in possession under Defendant 5 was denied. It was also contended that Nagji Purushotham Co. did not get possession of the property as per the Court delivery in their favour. The decision in the ''pokkuvaravu'' proceedings was admitted but it was stated that Defendant 1 had preferred an appeal from that decision.

The Plaintiff filed a replication in which it was reiterated that the Nedungadi Bank purchased only two cents out of the plaint property and obtained possession of only those two cents. It was also alleged that Nagji Purushotham Co. obtained actual delivery of possession of the property as per the Court delivery in O.S. No. 127 of 1103 and that the property was given on lease to Defendant 5.

The first Defendant filed an additional written statement in which it was contended that the suit was barred by limitation as it was brought more than one year after the date of the order disallowing the obstruction petition of Nagji Purushotham Co.

The Court below held that in the hypothecation deed, Ex. V, in favour of the Nedungadi Bank only two cents of land were included and that the decree, Ex. X, in O.S. No. 563 of 1105 covered only those two cents. It was, however, held that in the sale certificate, Ex. VI, the whole extent of 9 cents was included and that the Bank obtained possession of 9 cents as per the delivery kychit, Ex. A. Thus on the question of title the finding was that the Plaintiff''s predecessor was entitled to 7 cents out of the plaint property since the hypothecation deed, Ex. V, in favour of the Bank and the decree, Ex. X, covered only two cents. But as the sannad, Ex. VI, contained the whole 9 cents and the Bank''s application for delivery of possession was for 9 cents it was assumed that the obstruction of Nagji Purushotham Co. was in respect of the whole property and it was, therefore, held that since'' the suit was not instituted within one year from the date of the order disallowing the obstruction it was barred by limitation. On this ground the suit was dismissed but both parties were directed to suffer their costs.

The main ground urged in this appeal is that the sale certificate, Ex. VI, in favour of the Nedungadi Bank related only to two cents, that it was only those two cents that the Bank sought to obtain delivery of and that the obstruction of Nagji Purushotham Co. related only to those two cents. It is, therefore, argued that the order disallowing the obstruction can relate only to those two cents and that since the Plaintiff does not seek in this suit recovery of possession of those two cents, the suit being for recovery of possession of the remaining 7 cents only, it is not barred by limitation. The first Defendant has filed an objection memorandum objecting to the finding of the trial Court relating to the title to the property.

The two questions that arise for consideration in this appeal relate to the title to the property and to the plea of limitation. So far as the question of title is concerned the point for decision is whether the hypothecation deed, Ex. V, and the decree, Ex. X, relate to the whole of the plaint property, namely, 9 cents, or only two cents.

The Court sale under which the Nedungadi Bank purchased the property was on 24-11-1114. The sale in O.S. No. 127 of 1103 under which Nagji Purushotham Co. purchased the property was on 29-7-1113. Therefore, if the whole of the property was not included in the hypothecation bond, Ex. V, and in the decree, Ex. X, the Bank will not get title to the property in preference to the auction-purchaser in O.S. No. 127/1103 merely by reason of the fact that more property than what was actually covered by the hypothecation bond was sold in execution of the decree in O.S. No. 563 of 1105. It was because the Bank was a secured creditor that it was held in Ex. VIII and Ex. IX orders, that the rights of the Bank would not be affected by the sale for a simple money decree. It is clear that the Bank will have priority only to the extent to which it was a secured creditor. The decision relating to the title to the property will depend upon the question as to whether the whole extent of 9 cents was included in the hypothecation bond in favour of the Bank or whether only 1 two cents were included in that document.

8-11. (His Lordship considered the hypothecation deed, the decree and the delivery kychit and proceeded:)

The question whether the Nedungadi Bank got possession of the whole extent of 9 cents as per the delivery kychit Ex. A may not be a conclusive circumstance which will go to show that the hypothecation deed, Ex. V, and the decree, Ex. X, covered the whole extent of 9 cents. According to the learned Judge the hypothecation bond and the decree covered only two cents while the sansad, Ex. VI, and the delivery kychit, Ex. A, covered 9 cents. But it does not appear that the Plaintiff''s predecessor Nagji Purushotham Co. had a case when they put up obstruction to the application of the Nedungadi Bank, for delivery of possession of property that the Bank was entitled only to two cents out of the nine cents. The obstruction petition riled by Nagji Purushotham Co., i.e., Ex. VII, the order of the Munsiffs Court disposing of the obstruction petition, i.e., Ex. VIII, and the order of the High Court in revision, i.e. Ex. IX, do not show that the company had any such case at the time. The obstruction was on the basis that the company was a prior auction-purchaser and that the company not being a party to the decree obtained by the Bank was not bound by the decree and auction sale in that case. In the circumstances there is every reason to believe that what the Bank sought to obtain delivery of was the property covered by the hypothecation Ex. v. and the decree, Ex. X. Such being the case, if the company as a matter of fact got possession of the whole nine cents as per the Court delivery, Ex. A, that will be a circumstance that supports the first Defendant''s case that the property covered by Ex. V. was the whole nine cents.

It is admitted in the plaint that Nagji Purushotham Co. got actual possession of property as per Exts. B and C, delivery kychit, and that the Nedungadi Bank also got actual delivery of the property as per Ex. A, delivery report. That there was physical delivery o� possession of property as per Exts. B and C is clear from those documents. Ex. C shows that when the Amin at first went to the spot for effecting delivery there was obstruction relating to a building in the property and that it was not, therefore, delivered at that time. It was subsequently as per Ex. B delivery report, that that building was taken delivery of. Although it was contended by Defendant. 1 that Nagji Purushotham Co. did not get actual, delivery of possession of property we cannot accept that case in the light of Exs. B and C. As for Ex. A, delivery it is clear that there was actual delivery of possession of property. The Plaintiff admits that and P.W. 1, an attestor to Ex. A, and P.W. 2, the Amin, swear that there was actual delivery of possession although according to them it was only two cents that were delivered.

The Plaintiff''s case, however, relating to possession is that Defendant 5 was holding the property on lease, and that Defendants 1 to 4 are holding under him. According to Defendant 1 he was in possession of the property under a lease from Kolappa Pillai from 1096 onwards till the property was taken delivery of by the Nedungadi Bank under Ex. A, that after the Bank sold the property to Narayani Amma he attorned to her and was holding under her until he purchased the property from her. Ex. H is a lease deed executed by Nagji Purushotham Co. in favour of Defendant 5 on 13-9-1118. The company filed Ex. I suit against Defendant 5 for-recovery of possession of the property on the basis of Ex. H. While that suit was pending the company sold the property to Sankara Pillai and he got himself impleaded as additional Plaintiff in the suit. Subsequently, the parties compromised the matter. Ex. I is the copy of the compromise petition filed in the case on 29-3-1122. It is stated in that that Defendant 5 surrendered possession of the property to Sankara Pillai. On the same day, Sankara Pillai sold the property to the Plaintiff under Ex. P. Under the circumstances there is no basis for the allegation in the plaint that Defendant 5 is in possession of the property and that Defendants 1 to 4 are holding under Defendant 5. The 5th Defendant could have no possession of the property after the date of the compromise petition Ex. II. It is significant that in this suit the Plaintiff has claimed mesne profits only from Defendants 1 to 4 and not from Defendant 5, The fact that Defendant 1 is now in possession of the whole property is admitted by the Plaintiff.

The Plaintiff also admits as P.W. 4 that he never had possession of the property and that Sankara Pillai also had no possession. As for Nagji Purushotham Co. the Plaintiff swears, that he does not know whether that company had possession of the property. If Defendant 1 is in possession of the whole property he could not have derived possession from Defendant 5 who had already surrendered possession of the property to Sankara Pillai under Ex. II. If there was actual delivery of possession under Ex. A as is admitted by both parties Defendant 1 must have got possession, of the whole extent of 9 cents from Narayani Amma who got possession from Nedungadi Bank. This goes to show that as per the Court delivery, Ex. A, Nedungadi Bank got possession of nine cents of land and not two cents as alleged by the Plaintiff. The fact that the Bank got actual possession of nine cents of land supports the case of Defendant 1 that the property that was actually hypothecated in favour of the bank was nine cents For all these reasons we hold that the property that was hypothecated under Ex. v. is the whole of the plaint schedule property, nine cents in extent. We, therefore, reverse the finding of the Court below on this point.

The other point urged in appeal is that the finding of the Court below that the suit is barred by limitation is wrong. The basis of the finding of the learned Judge is that the application of the Bank for delivery of possession of property related to the whole 9 cents, that the obstruction put up by Nagji Purushotham Co. also related to the whole extent of 9 cents and that the present suit is virtually one for recovery of possession of seven cents out of those nine cents. Ex. VIII, order, disallowing the obstruction petition is dated 5-4-1118 and the order of the High Court to revision confirming that order is dated 7-7-1118. This suit was .filed only on 15-10-1122. It was, therefore, held that the suit is barred under Article 11-A, Limitation Act. As already stated, the sannad, Ex. VI, covered the whole extent of 9 cents of land and, therefore, there is every reason to hold that the application by the Bank for delivery of possession of property related to the whole nine cents. Ex. VII is the objection filed by Nagji Purushotham Co. to the application of the Bank. The only ground taken in that was that the Bank was not entitled to recover possession of the property in the possession of the company. The objections proceeded on the basis that the property which the Bank sought to take delivery of was the whole nine cents in the possession of the company. No objection was raised on the ground that the Bank was entitled only to two cents. The real dispute between the parties was, as already stated, as to whether the Bank was entitled to recover possession of the property in the possession of the company and the execution Court decided the question in favour of the Bank. The order was one passed under Rule 98 of Order 21, CPC Order 21, Rule 103 provides thus:

Any party not being a judgment-debtor against whom an, order is made under Rule 98, or Rule 99 or Rule 101 may institute a suit to establish the right which. he claims to present possession of the property or to cancel the order, if any, for compensation; but subject to the result of such suit (if any), the order shall be conclusive.

Article 11-A, Limitation Act, prescribes a period of one year for a suit by a person against whom an order has been passed under the CPC upon an application by the holder of a decree for the possession of immovable property complaining of resistance or obstruction to the delivery of possession thereof to establish the right which he claims to the present possession of the property comprised in the order. The question is whether the present suit is one coming within the scope of Article 11-A. The allegation in the plaint is that so far as 7 cents out of the 9 cents are concerned Defendants 1 to 4 are holding the property under Defendant 5 who is said to be the lessee of the property and the suit is for recovery of possession of these 7 cents. If the suit is for recovery of possession of property on the basis of a lease the order of the execution Court on the obstruction petition cannot be a bar to such a suit since the cause of action will be entirely different. But the question for consideration is whether the Plaintiff can succeed on the basis of such a cause of action. We have already seen that Defendant 5 is not holding the property on lease and that he surrendered his rights under the lease deed, Ex. H, by means of the compromise petition Ex. II. There is, therefore, no basis for the allegation that Defendants 1 to 4 are holding the property under Defendant 5. It is clear that Defendant i is holding the property in his own right as per the sale deed in his favour. The Plaintiff cannot, therefore, get a decree for possession in this case on the basis of the alleged lease in favour of Defendant 5.

The suit is really one for recovery of possession of property on the strength of the same title, which the Plaintiff''s predecessor-in-interest, Nagji Purushotham Co. put forward against the predecessor-in-interest of Defendant 1, the Nedungadi Bank Ltd., in the obstruction proceedings. It is for the purpose of escaping the consequences of Order 21, Rule 103 CPC and Article 11-A, Limitation Act, that the Plaintiff has based the suit on a different cause of action. But that cannot alter the real scope of the suit. If the suit is really one for establishing the right which the Plaintiff claims to the present possession of the property on the basis of the title put forward by his predecessor-in-interest in, the obstruction petition, Ex. VII, the Plaintiff cannot escape the consequence of not filing a suit as provided in Order 21, Rule 103 within the period prescribed by Article 11A, Limitation Act. The effect of the omission to file such a suit within the prescribed period is that the order on the obstruction petition has become conclusive and the Plaintiff will not be heard to say in this suit that the order is wrong. As stated already, if the lease set up in the plaint is false the Plaintiff can succeed in this suit only by establishing his right to present possession of the property as provided in Order 21, Rule 103. The suit for that purpose ought to have been filed within one year from the date of the order in the obstruction proceedings. This suit which is really one for establishing the Plaintiff''s right to present possession of the property comes within the ambit of Article 11 A, Limitation Act, and is, therefore, barred by limitation.

Reference may be made in this connection to the decision of the Madras High Court in, - The Kaleswarar Mills, Ltd. by agent, A.L.A.R. Kalai Raja Chettiar Vs. A.P. Govindaswami Naicker and Others, In that case it was held that where the decree holder''s application for removal of obstruction put up by A. and for possession of property is dismissed under Order 21, Rule 99, and the right of A to be in possession is declared and no suit to establish the decree-holder''s right to possession is brought by him under Rule 103 within one year from the date of the adverse order that order operates as a conclusive adjudication against the decree-holder as to the right to the property so as to bar a subsequent suit by him against A passed on the same title on which he could have relied to oust A from possession on the date of the adverse order under Order 21, Rule 99 Following the decision in - Unni Moidin Vs. Pocker and Others, Rajamannar J. (as he then was) observed thus:

The scope of a suit under Rule 103 of Order 21 CPC is not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the Plaintiff claims the present possession of the property. It is not necessary to refer to any other decision save the decision reported in - Akkammal Vs. Komarasami Chettiar and Others, where after a consideration of several decisions of this Court it was pointed out that an order under Order 21, Rule 61, is intended to be a summary declaration of a want of title in the objector, which declaration would amount to a final decision of the question between the parties, if the party aggrieved did not take steps by the institution of a suit to supersede it. Though that case dealt with the effect of Order 21, Rule 63, on principle what was laid down in that decision would also govern the facts of the present case. The procedure indicated by the Code is the same and Order 21, Rule 103, corresponds to Order 21, Rule 63.

The same principle applies to this case also Learned Counsel for the Appellant relied on two decisions of the Calcutta High Court, namely, - Bisweswar Banerjee and Others Vs. Naba Kumar Singh Dudhoria and Others, and - Gobardhan Banerjee Vs. Sukhamoy and Others, We do not think that these decisions apply to the facts of the present case. In the first case the person who resisted delivery and against whom, an adverse order was passed was not actually dispossessed by the decree-holder. It was held that Article 11A would apply only if there was actual dispossession by the decree-holder. In the latter case the proposition that was laid down by the learned Judges was the following:

The terms of Order 21, Rule 103 by themselves would not lead to the conclusion that the title of the person affected by the order passed under Order 21, Rule 98 or under Order 21, Rule 99 is extinguished if he does not bring his suit within one year as provided for in the aforesaid Article 11 A, Limitation Act...The title to the property of the rightful owner would be extinguished only if Section 28, Limitation Act, can be invoked.

They further observed:

For the purpose of attracting the operation of Section 28 it is necessary that the proceeding must be (1) a suit and (2) a suit for possession. It has been held in a number of cases that, where under some law the procedure for recovery of possession by a party is not through a suit but through an application if the period for making the application for possession is barred, Section 28, Limitation Act, would not come into the picture. In such a case, the remedy would be barred but the right would not be extinguished, with the result that if a person who had not made an application for possession within the time limited some how or other gets possession and is thereafter dispossessed by a third person, his suit against the third person would not be defeated on the ground that be had no title at the date of the institution of that suit for possession. If, however, his title had been extinguished u/s 28, Limitation Act, the position would have been different, for, even if he had regained possession somehow or other, his suit would have been defeated by the Defendant on the plea that though he, the Defendant may have been a trespasser, the Plaintiff could not recover as he himself had no title.

In the present case, the question whether the plainriff''s title to the property has been extinguished by reason of his failure to institute a suit within one year from the date of Ex. VIII order does not arise for consideration. What the Plaintiff seeks in this suit is really to establish the right which he claims to the present possession of the property comprised in the order, Ex. VIII. Such being the case the principle laid down in - Gobardhan Banerjee Vs. Sukhamoy and Others, cannot apply to this case. For the above reasons we hold that apart from the question of title the, suit is barred under Article 11A, Limitation Act.

In the result, we confirm the decree of the Court below dismissing the suit and dismiss the appeal with costs.