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Appeal from Appellate Decree No. 1211 of 1947, decided on 10th December, 1952.
S. 47‑Decree‑holder auction‑purchased property at execution sale but omitted to get delivery of possession after confirmation of sale‑Civil suit to recover possession not barred.
The decree‑holder auction‑purchased the right, title and interest of the defendant in certain land, and the sale was confirmed, but the decree‑holder did not get delivery of possession through the executing Court.
The decree‑holder filed the present suit for declaration of title and for khas possession Held, section 47, Civil Procedure Code, was not a bar to the suit.
Majority view in Kailash Chandra Tarafdar v, Gopal Chandra Poddar 30 C W N 649 dissented from.
[Case‑law referred to].
A. F. M. Mesbahuddin, for Appellants.
Gopal Chandra Das, for Respondents.
‑This appeal, at the instance of the plaintiff, is against the judgment and decree of the learned Additional District Judge, Second Court, Dacca, passed in Title Appeal No. 190 of 1946 setting aside those of the First Subordinate Judge, Dacca, passed in Title Suit No. 25 of 1945.
The property in dispute consists of two Schedules, ka and kha. Both appertain to lakheraj taluk No. 4868B No. 1 of Dacca Collectorate known as Nabin Chandra Son of which Sufia Khatun Bibi of Kakjitolla, Dacca, had 9 as. interest and Mon Mohan Das, executor to the estate of Gagan Chandra Das had 7 as. share. The plaintiff purchased the 9 as. interest of Sufia Khatun Bibi by a registered sale‑deed, dated the 13th Chaitra, 1330 B.S., and became the owner and possessor thereof. Thereafter plaintiff instituted a Partition Suit No. 33 of 1926 in the Subordinate Judge's Court, Dacca, and got a separate allotment in respect of his 9 as. share in the taluk. The plaintiff's case is that the defenda4t No. 1 took lease of the land of ka Schedule in Agrahayan,1333 B.S., from plaintiff anti his co‑sharers of the Schedule ka land of the plaint on a monthly rent of Rs. 5 and became a tenant‑at‑will on the land and built a shop on the suit land and was in possession of the same as such. Later on, when the land fell exclusively to plaintiff's saham after partition, the defendant No. 1 attorned to the plaintiff as his tenant‑at‑will on the land: Thereafter the plaintiff brought a suit for rent of the Schedule ka land against defendant No. 1 in S. C. C. Suit No. 3302 of 1936 in the Court of Second Munsif, Dacca, and obtained a solenama decree against the defendant No. 1. Subsequently defendant No. 1 brought a Suit No. 239 of 1937 in the Court of 3rd Munsif, Dacca, for setting aside the compromise decree in the said Small Cause Court suit. He lost the suit up to the High Court in Second. Appeal and the plaintiff in execution of the decree obtained in the Small Cause Court Suit No. 3302 of 1936 auction‑purchased the right, title and interest of the defendant No. 1 in the Schedule ka land in Money Execution Case No. 276 of 1938 of the Second Court of the Munsif, Dacca, on 9th May, 1939. The sale was confirmed on 14th June, 1939. After the purchase of the right, title and interest of the defendant No. 1 by the plaintiff,' defendant No. 1 possessed the land as a trespasser and his tenancy right merged into the superior right of the plaintiff. Therefore, the plaintiff filed the present suit for declaration of his title and for khas possession after evicting the defendant No. 1 from the land of Schedule ka.
As regards the land of Schedule kha, plaintiff's case is that he was in khas possession of the same but Sarat Kamini Dassi lived on the land for sometime as a licensee. Though she had no heritable or transferable right in it, defendant No. 1, however, obtained a collusive and fraudulent document from her in the benami of his mother‑in‑law Soudamini Dasya in tie year 1340 B.S, and since then defendant No. 1 has been possessing the said land. The defendant No. 1 agreed in the solenama to execute a kabuliyat for the land of both the iSchedules in suit but did not execute any kabuliyat. Accordingly he is a trespasser also on the land of Schedule kha and plaintiff is entitled to get possession on declaration of his title in the suit land.
The suit was contested by both the defendants, that is the defendant No. 1 and defendant No. 2 by filing separate written statements. Defendant No. 1 pleaded, amongst others, limitation, defect of parties and title by adverse possession over 12 years. Defendant No. 2, amongst others, pleaded bar of section 47 of the Code of Civil Procedure, limitation and adverse possession.
The trial Court decreed the suit holding that the suit was not barred under section 47 of the Code of Civil Procedure and the plaintiff's title was not extinguished by adverse possession over 12 years. On appeal, the learned Additional District judge set aside the judgment and decree of the trial Court, holding that the plaintiff who purchased the right, title and interest of the judgment‑debtor defendant No. 1 in Money Execution Case No. 276 of 1938 did not take delivery of possession through Covrt under O. XXI. r. 95 of the Code of Civil Procedure within 3 years and the delivery of posses sion in execution of the decree is a question relating to execution, discharge or satisfaction of the decree coming under section 47 of the Code of Civil Procedure ; plaintiff was not entitled to bring a separate suit for possession and his suit was barred under section 47 of the Code of Civil Procedure. As regards the land of Schedule kha, the learned Additional District judge held that the suit as framed by the plaintiff was one of possession followed by dispossession and the plaintiff must prove his possession within 12 years of the suit under Article 142 of the Limitation Act and as he failed to prove his possession within 12 years before the suit, the plaintiff's suit was barred by Article 142 of the Limitation Act. He further held that the title of the plaintiff was barred by adverse possession of the defendant over 12 years. Hence this appeal by the plaintiff against the judgment and decree of the lower appellate Court.
In this appeal the learned Advocate appearing on behalf of the appellant raised the following points in support of his appeal : (1) that after the purchase in execution of Small Cause Court decree against the defendant, plaintiff's title was perfected from the date of the sale and the defendant No. 1 was holding the land of Schedule ka as trespasser and, the plaintiff both as auction‑purchaser and as a holder of the superior interest was entitled to get khas possession against the trespasser and the period of limitation is 12 years from the date when the defendant trespassed into the land ; (2) that even if the title of the plaintiff was not perfected by sale, then the title of the defendant No. 1 as a tenant was continuing and at any rate the plaintiff was entitled to get a declaration of his title and recovery of possession through defendant No. 1 as his tenant ; (3) that delivery of possession is not an integral part of the execution of the decree and there fore it does not relate to execution, discharge or satisfaction of the decree and as such does not come within the purview of section 47; (4) additional evidence, namely, suit Register, should not have been taken into evidence by the appellate Court in the case at the appellate stage in order to prove and show that there was no delivery of possession to the plaintiff his purchase.
As regards the land of Schedule kha, the learned Advocate's contention is that Ananda Das, husband of Sarat Kamini, had a tenancy right and he was recorded in the C.S. khatian as tenant on the land and at any rate Sarat Kamini Dasya, widow of Ananda Das, was holding it as a tenant and her possession cannot be treated otherwise than as a tenant and there is no bar in the way of plaintiff's getting a declara tion of his taluka right and as such the learned Additional District judge erred in law in holding that the plaintiff's suit was barred under Article 142 and his title was barred by adverse possession of Sarat Kamini Dasya and her transferee, the defendant No. 2 over 12 years adversely to that of the plaintiff.
The most important of the points raised in the appeal is point No. 3, namely, whether delivery of possession is an integral part of the execution proceeding coming under section 47 of the Code of Civil Procedure barring the present suit of the plaintiff. This point we have taken first, for the decision of the case depends on the decision of this point but the point is not free from difficulty. There is divergence of opinion in different High Courts of undivided India. The earlier decisions of the Calcutta High Court were not unani mous on this point. The Full Bench of the Calcutta High Court in the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar (30 C W N 649: 1 L R 53 Cal. 781) has held that delivery of possession of properties sold in execution of a decree is a question relating to execution, discharge or satisfaction of the decree and the decree‑holder retained the character of a decree‑holder even after the sale of the property and therefore it is a matter between the parties to the suit and directly comes under section 47 of the Code of Civil Procedure ; whereas the Full Bench of the Allahabad High Court in the case of Seth Kedar Nath v. K. Arun Chandra Sinha (A I R 1937 All. 742: I L R 1937 All. 921.) as well as the Full Bench of the same High Court in the case of Bhagwati v. Banwarilal and others (I L R 31 All. 82) has held that the question of delivery of possession of the properties purchased by the auction purchaser though he happens to be a decree‑holder is not a question relating to execution, discharge or satisfaction of the decree which after the confirmation of the sale is satisfied and there is nothing left for the execution of the decree and the decree‑holder does not retain the character of the decree holder if the sale has become absolute and the property vested on the auction‑purchaser under section 65 of the Code of Civil Procedure. The Full Bench of the Patna High Court in the case of Tribeni Prasad Singh and others v. Ramasray Prasad Choudhuri and others (A I R 1931 Pat. 241) held "undoubtedly by his purchase at the execution sale the purchaser, whether he is the decree‑holder or a third person, acquires under section 65 read with O. XXI, r. 92, an absolute title to the property purchased, and any obstruction by the judgment‑debtor to his taking possession of the property will give rise to a cause of action and the Civil Court will have jurisdiction to entertain his suit for recovery of possession". The decisions of the majority of the other High Courts in undivided India are in support of the view taken in the Full Bench cases of Allahabad and Patna High Courts. Thus to quote Mr. Justice Page; "the oracle has spoken both at Delphi and at Dodona, and it remains for this Court to determine to which voice it ought to hearken".
We may point out that Cuming, J., in the Full Bench case of the Calcutta High Court reported, in 30 C W N 649 mentioned above has taken a view which is in consonance with the view of the Allahabad and Patna Full Benches, but the majority of the Full Bench have expressed the view that the title of the auction‑purchaser is not completed till delivery of possession is given to the auction‑purchaser and it cannot Le said that after the confirmation of the sale execution of the decree terminated and, therefore, delivery of possession is an integral part of the execution proceeding. But we do not find anything in the Code of Civil Procedure to hold that the title of the auction‑purchaser is not completed till the delivery of possession of the property purchased. Their Lordships of the Full Bench of the Calcutta High Court have pointed out that the question of delivery of possession under rules 95 and 96 finds a place under Order XXI, which Order is headed "execution of decrees" and hence it must relate to the execution of the decree. Cuming, J., has pointed out that the heading is not only "execution of decrees" but the "execution of decrees and orders". And if the question of delivery of possession is a question relating to the execution of the decree, then the auction‑purchaser need not file an application for delivery of possession under O. XXI, r. 95 or 96, but what we find is that the Court is to pass an order for delivery of possession to be made to the auction‑purchaser on his application for delivery of possession under O. XXI, r. 95 or 96 and this order of the Court is to be executed by giving possession to the auction‑purchaser. And therefore what the Court executes is not a decree but the order passed under O. XXI, r. 95 or 96, as the case may be. We respectfully agree with his Lordship, Cuming J., of the Calcutta High Court and their Lordships of the Full Bench of Allahabad and Patna High Courts that delivery of possession is not a part and parcel of the execution of the decree. It is incidental to the sale of the property. Article 138 of the Limitation Act provides 12 years for a suit for possession to an auction‑purchaser of the property purchased in execution sale: It does not say a stranger auction‑purchaser or a decree holder auction‑purchaser. That also clearly indicates that a separate suit is contemplated by the Legislature in Article 138 of the Limitation Act which provides for 12 years' limitation for a suit for possession.
The Full Bench case of the Calcutta High Court was considered in the case of Seth Kedar Nath v. K. Arun Chandra Sinha, by the Chief Justice Sir Sulaiman and it was held that the decision of the Calcutta Full Bench case was based on a wrong reading of the Privy Council judgment in the case of Prosunno Kumar Sanyal and another v. Kali Das Sanyal and others (I L R 19 Cal. 683 (P C)) and in the case of Ganapathy Mudaliar v. Krishna machariar and others (I L R 41 Mad. 403 (P C)). Their Lordships in the Full Bench of the Calcutta High Court have held relying on the observations of the Judicial Committee of the Privy Council in the case of Prosunno Kumar Sanyal and another v. Kali Das Sanyal and others : "It is of utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of section 244", and also on the observations of their Lordships of the Privy Council that section 244 (section 47) had been rightly held in India to apply to a case in which the question raised concerns the auction‑purchaser at an auction sale as well as the parties to the suit and in that case the vakil was the auction‑purchaser and was a party to the suit and the question raised in that suit should have been raised before the sale was confirmed and if raised would have been determined by the Court which was executing the decree. The Full Bench of the Allahabad High Court in the case reported in A I R 1937 All. 742 as well as the Bombay High Court in the case of Magan Lal Mulji v. Doshi Mulja Bhai chand and another (I L R 25 Bom. 631) have pointed out that what the Privy Council laid down is that even though a third party who was not a party to the suit but interested and concerned in the result is impleaded as party to the proceeding that is no bar to the question between the parties being decided under section 244 and it does not decide that an auction‑purchaser is a party to the suit. I may also point out that in the decision of the Full Bench of the Bombay High Court in the case of Hargovind Fulchand and another v. Bhudar Raoji and others (I L R 48 Bom. 550 (F. B.)) it has been held that where a decree‑holder, who is himself the auction‑purchaser at a Court sale held in execution of his decree, seeks to get possession of the property so purchased, he does not do so in execution of his decree but by virtue of the title acquired as purchaser, and therefore his claim based on such title does not relate to the execution, discharge or satisfaction of the decree, within the meaning of section 47 and, therefore, the provision of that section does not prevent his filing a separate suit for posses sion if it was not otherwise barred. The learned Chief Justice Sir Sulaiman has pointed out that if the contention that the delivery of possession is an integral part of the execution proceeding is accepted as sound, then the result would be that after the confirmation of the sale, the decree holder who has not taken delivery of possession will be entitled to execute his decree alleging that his decree is not satisfied because he has not taken possession of the property sold in execution of the decree and as an example, he has stated that if a decree‑holder in execution of his decree purchased a building after the confirmation of the sale but before‑taking delivery of possession, is destroyed by earthquake the decree hblder will be entitled to execute the decree and realise the decretal amount by sale of the other properties of the judgment‑debtors. Cuming, J., of the Calcutta High Court also‑pointed out the same in the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar and observed : "This argument (delivery of possession, is an integral part of the execution of the decree and that until the auction‑purchaser is put in possession, the decree .has not been satisfied) is obviously a fallacious one. If it had any substance, then on the failure of the decree‑holder purchaser to get possession after his purchase he would be entitled to again execute the decree for the amount he had paid for the purchased property, for his decree would then have to be considered as unsatisfied to that extent. I need hardly say that he cannot, at least, I have never heard it even suggested that he could". In this connection we should like that the judgment of Cuming, J., in the Full Bench case reported in 30 C W N 649 and that of Banerji, J., in the case of Bhagwati v. Banwari Lal and others, and the judgment of the learned Chief Justice Sir Sulaiman in the case Seth Kedar v. Arun Chandra Sinha, may be referred to, for, it would be difficult for us to improve on the reasonings and arguments given in those cases in holding that delivery of possession is not an integral part of the execution of the decree if it is not a decree for possession of an immovable property. In consonance with the view of the Full Bench decisions of Bombay, Patna and Allahabad, we are of opinion that delivery of possession is not an integral part of the execution proceeding and the plaintiffs suit is not barred under section 47 of the Code of Civil Procedure. The sale, as I have said in stating the facts of the case, took place on the 9th May, 1939, and it was confirmed on the 14th June, 1939, and the present suit was filed on the 13th March, 1945, that is, well within 12 years from the date of the sale and therefore the suit is not barred under Article 138 of the Limitation Act. The decision on this point is sufficient to dispose of the appeal so far as the land of Schedule ka is concerned.
There is another aspect of the matter, namely, whether the decree‑holder who purchased the property with the permission of the Court still retained the character of a decree‑holder in order to bring the case "between the parties to the suit" under section 47. If the delivery of possession is not an integral part of the execution of the decree, then the question whether it is a matter between the parties to the suit or not does not arise and therefore we do not think it necessary to decide that point in this case.
As regards the first point raised by the learned Advocate for the appellant that the title to the suit, land has been perfected when the sale was confirmed and the title to the property has been vested in the plaintiff decree‑holder auction‑purchaser, the decision of the third point covers this point because we have held that after the confirmation of the sale the title vests in the auction‑purchaser be he decree holder auction‑purchaser or third party auction‑purchaser.
As regards his second point that even if the title of the auction‑purchaser is not perfected, then the defendant continues to be a tenant of the plaintiff and in that view of the matter, plaintiff is entitled to get declaration of his title and possession through defendant No. 1 does not arise in view of our decision on the first and third points.
There still remains another point which has been dealt with by the lower appellate Court and agitated here by the learned Advocate for the appellant, namely, apart from his title by purchase in execution of S. C. C. decree, the plaintiff is entitled to get khas possession on the basis of his superior right. His contention is that though the plaintiff has not taken possession, the title of the defendant terminated and the title acquired by the plaintiff on account of his purchase in execution of S. C. C. decree merged with his superior interest and in that view of the matter, the defendant No. 1 being a trespasser from the date of the sale of the property plaintiff is entitled to get khas possession after evicting the defendant No. 1 from the disputed land and the period of limitation is 12 years from the date of the sale. The learned Additional District judge has observed that the cause of action in the suit has been stated to be the date of the sale of the property. We are unable to agree with the learned Additional District Judge. The plaintiff has definitely stated in his plaint that he was praying for khas possession on the basis of his superior title and his title acquired by purchase in execution of the Small Cause Court decree has already been merged, in the superior title, and the date of the merger is the date of the sale and therefore the cause of action for getting khas posses sion on the basis of the superior title arose from the date of the merger. We are of opinion that the plaintiff is entitled to maintain his suit for khas possession on the basis of the superior title also. When the right, title and interest of the defendant No. 1 was purchased by the plaintiff, it merged with the superior interest and the defendant No. 1 became a trespasser from the date of the sale and the plaintiff as talukdar is entitled to evict the trespasser from the suit land within 12 years from the date of the trespass. But the right of getting khas possession in that case again depends upon the perfection of his title by purchase in execution sale and the question of the bar of section 47, Cr. P. C., which we have already decided in favour of the plaintiff.
Now coming to the land of Schedule kha, the learned Additional District judge held that the suit as framed by the plaintiff was one for possession followed by dispossession and therefore came under Article 142 of the Limitation Act and that the plaintiff had failed to prove possession within 12 years and therefore his suit was barred under Article 142 of the Limitation Act. Now, the question is whether the suit is barred under Article 142. The dacision of this question will depend upon the nature of title and possession asserted by Sarat Kamini Dasya. It appears from the record of rights that Ananda Das husband of Sarat Kamini was recorded as a tenant of the land of plot No. 148 of khatian No. 15591 on payment of rent of Rs. 3 to the lakheraj talukdar of taluk No. 4868B (1) of the Dacca Collectorate recorded in khatian No. 15589 and that the khatian No. 15591 is subordinate to khatian No. 15589. It appears that the tenancy of Ananda Das was sold at the instance of Mon Mohan Das, executor to the estate of Gagan Chandra Das. Even after the sale of this tenancy, Ananda Das and on his death, his widow, Sarat Kamini continued to possess the land. There is no evidence that they were in possession of the land in assertion of maliki right hostile to that of their landlord. Their possession in the circumstances cannot but be construed as one of adverse possession of limited interest. The plaintiff's case is that Sarat Kamini was possessing the land as a licensee and her possession was permissive but the trial Court could not rely on the evidence adduced by the plaintiff in support of his case and observed that the evidence adduced by the plaintiff was not dependable and the appellate Court definitely found that the plaintiff had failed to prove that Sarat Kamini Dasya was possessing the land as a licensee but the fact of possession is found by both the Courts below. The trial Court held that the kabala by virtue of which the defendant No. '2 purchased the land from Sarat Kamini was without any consideration and 12 years' possession of Sarat Kamini was not completed before the sale and the defendant No. 2 was an independent trespasser and therefore the plaintiff's title was not barred by limitation. But the appellate Court is of opinion that after the death of Ananda Das, Sarat Kamini Dasya was in possession for over 12 years. But the learned Additional District judge has not considered what was the nature of title acquired by Sarat Kamini Dasya by her possession over 12 years in view of the fact that there is no evidence on record that she claimed maliki right and asserted a title hostile to the superior interest holder. At best her possession can be called as possession of a limited owner when the fact of possession was found in her favour. This conclusion of ours has been further corroborated by the kabala she executed in favour of the defendant No. 2, Exh. F, dated the 18th August, 1933. In the Schedule of the kabala, the properties sold were described as holding No. 53/1 of Ward No. 3, the settlement dag No. 148 of khatian No. 15591 of Sheet No. 61 of Ward No. 3 of Dacca Municipality. We have already pointed out that the land of Plot No. 148 of khatian No. 15591 is a raiyati land of Ananda Das at a jama of Rs. 3 which after the death of Ananda Das, Sarat Kamini Dasya was possessing and selling the very self same interest to the defendant No. 1, Therefore it appears that the title asserted by Sarat Kamini is that of a limited interest of a tenant. The plaintiff prayed for a declaration of his superior taluka right and prayed for khas possession after evicting the defendant. In view of our finding that the defendant No. 2 has acquired from Sarat Kamini Dasya, a limited interest of tenant by adverse posses sion over 12 years, the plaintiff is not entitled to get khas possession after evicting the defendant No. 2, but he is entitled to get a declaration of his title and possession through defendant No. 2 so far as the land of Schedule kha is concerned.
The result, therefore, is that this appeal is allowed and the judgment and decree of the lower appellate Court are modified to the extent that the plaintiff's suit is decreed for khas possession after evicting the defendant No. 1 from the land of Schedule ka and the plaintiff's suit so far as the land of the Schedule kha is concerned is decreed and the plaintiff's taluka right is declared and he is entitled to get possession through the tenant, defendant No. 2. He is ‑ not entitled to get khas possession: in respect of the land of Schedule kha. The plaintiff is entitled to get his costs in this appeal.
ISPAHANI, J.‑I agree.
A. H.Appeal allowed.
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