Velayudhan Pillai vs Ouseph and Another

Subramania Iyer, J.—The sole Defendant is the Appellant in this second appeal. The suit was for recovery of possession of a piece of land with arrears of and future rent on foot of an oral lease alleged to have been given by the 1st Plaintiff who is the uncle of the Defendant. The parties belong to the Nair community. Under an udampadi of the year 1092 (Ex. I), the property in question in the case was put in the possession of the 1st Plaintiff for a life estate, with liberty to encumber it to the extent of Rs. 500/-. This privilege was availed of by him and the mortgagee filed O.S. No. 707 of 1102 which ended in a decree for sale. In execution thereof, the property was purchased by the decree-holder. He did not, however, apply for or obtain delivery of possession which could at that time have been only symbolical because the property was out-standing with the Defendant as lessee under the 1st Plaintiff who was the judgment-debtor. The Defendant did not allow the matter to rest at that but in his turn levelled an attack against the decree and sale in O.S. No. 707 by filing O.S. 171 of 1112 to set aside the decree and execution proceedings including the sale. In that attempt he was worsted. Exts. II and III which are the Diary and the File Book in respect of the litigation prove these facts.

As a condition for the grant of a temporary injunction restraining delivery of property the Defendant was asked to deposit the rent for six years in O.S. 171 which was accordingly done. The 1st Plaintiff was a party to the said suit. It was held therein that the decree and the proceedings in execution culminating in the sale of the property were valid and binding upon the property. That litigation terminated by the decision of the High Court only about the year 1122.

The suit out of which this second appeal arises was filed during the pendency of those proceedings in the year 1118. The first Plaintiff gave a superior lease in favour of the 2nd Plaintiff authorising him to recover possession from the lessee with arrears of, and future rent. He alleged that rent was paid until 1114 but was left in arrears from the next year onwards. Rent from 1115 is sought to be recovered in the action. Pending the suit the 1st Plaintiff died in 1119 and his daughter came in as the 3rd Plaintiff on the basis of a deed of gift alleged to have been executed by the 1st Plaintiff in her favour. The main question for consideration in second appeal is as regards the legal effect of the sale in O.S. No. 707 of 1102.

The Courts below, it would appear, were of the opinion that notwithstanding the sale the Defendant is liable to pay rent to the 1st Plaintiff and to the superior lessee, the 2nd Plaintiff, because his possession has not been disturbed by the purchaser at the auction sale as he did not apply for and obtain delivery. Title to property sold in execution of a decree in court auction sale passes to the purchaser on confirmation and the judgment-debtor thereupon ceases to have any title or interest therein. No I doubt, the CPC confers a right to the purchaser to apply for and obtain delivery of the property in enforcement of the sale certificate by an application made in that behalf to the Court. Such an application or delivery pursuant thereto is not necessary to vest title in the purchaser. It is open to the purchaser to straightway file a suit against the party in possession if he be not the judgment-debtor, and obtain whatever relief he is entitled to as purchaser. The circumstance, therefore, that the purchaser had not taken delivery of possession is not cine that militates against the completeness of the title obtained by him at the auction sale which was confirmed.

The courts below are also not right in supposing that the Defendant having been a lessee under the 1st Plaintiff and continues to hold under that lease he is not competent to question the title of the 1st Plaintiff, or the 2nd Plaintiff as deriving rights under him from claiming back possession or asking for rent. The estoppel of a tenant against questioning the title of the lessor relates to the date when the lease was granted. It is competent to a tenant to plead that subsequent to the lease the lessor lost his title and if the lessor lost title subsequently, as from the date he loses the right to ask for possession and for future rent which are adjuncts to the title which he had lost. In my judgment, therefore, the consequence of the auction sale in O.S. No. 707 of 1102 which was confirmed before the year 1112 is to disentitle the 1st Plaintiff or anybody claiming under him to either demand rent or possession from the Defendant. The reliefs asked for in the suit are, as already stated, for possession and for rent accruing after 1115. To neither of these is the 1st Plaintiff or the 2nd Plaintiff entitled in the events that have happened.

Another question that arises for consideration is what exactly is the nature of the interest obtained by the 1st Plaintiff as per Ex. I, whether it is a life estate or a right of full ownership. A determination of, this question is in the view that I have taken upon the first point purely academical because even if the 1st Plaintiff did obtain complete ownership under Ex. I or by some arrangement thereafter, he having encumbered the entire property and that encumbrance having been enforced by suit, decree and sale, whatever rights he had on the property were lost by him on account of that sale and its confirmation. If the 1st Plaintiff had only a life estate then the reversion vests in the Defendant and other members of the tarwad. There was nothing that the first Plaintiff could make a gift of in favour of his daughter, the 3rd Plaintiff. As already stated, this last question does not arise for consideration in view of the conclusion reached by me as regards want of title in the Plaintiffs to get any of the reliefs asked for in the plaint on account of the sale in O.S. No. 707 of 1102.

The Second Appeal should, therefore, be allowed with costs throughout.