R.S. Ramanathan, J.@mdashThe Plaintiffs, who were successful in the Trial Court and unsuccessful in the First Appellate Court are the Appellants herein.
2. The Plaintiffs filed the suit for declaration that the suit properties belonged to them and for permanent injunction, restraining the Defendant from interfering with their possession and enjoyment of the suit property.
3. It was the case of the Appellants/Plaintiffs that the suit properties were purchased in the name of the first Appellant out of the income from the joint family and the suit properties were the joint family properties of the first Appellant. The Appellants 2 and 3, are the sons of the first Appellant. One Mr. Muthu Gounder, filed a suit in O.S. No. 1084 of 1969, for recovery of the amount on the basis of the promissory note against the first Appellant and the suit was decreed and in execution of the decree, the decree holder viz., Muthu Gounder, filed a petition being E.P. No. 344 of 1972 and brought the suit properties for sale.
4. The Respondent/Defendant took the suit properties on Court auction sale on 07.09.1972 and the sale was confirmed on 09.10.1972 and the sale certificate was issued on 12.01.1973. Though the Respondent/Defendant purchased the suit property in Court auction, he has not filed any application for delivery of possession, as per Order 21, Rule 95 of CPC ( in short C.P.C.) and as per Article 134 of the Limitation Act, he ought to have filed the application for delivery of possession within a period of one year either from the date of confirmation of the sale or from the date of issuance of the sale certificate.
5. . As the Respondent/Defendant did not apply for possession, as per Order 21, Rule 95, within a period of one year, his right to the suit property was lost as per Section 27 of the Limitation Act and the Plaintiffs continued to be in possession of the suit properties, even after the Court auction sale in favour of the Respondent. As the Respondent''s right was extinguished as per Section 27 of the Limitation Act, the Respondent/Defendant cannot claim any right to the property and the Respondent attempted to interfere with the peaceful possession of the Plaintiffs'' property and therefore, the suit was filed for declaration and injunction.
6 The Respondent/Defendant contested the suit, stating that the properties were punja properties of the first Appellant/Plaintiff. After the Court auction purchase, the Respondent/Defendant took possession of the property, as the Plaintiffs have left the Village, as they felt humiliated after their properties were brought to sale and from the date of the auction, he was in possession of the property and therefore, there was no need to take possession through Court. After taking possession, he has paid the loan, payable on the land and the Respondent/Defendant is enjoying the property by raising punjai crops and the Plaintiffs demanded more money and that was refused and the case was filed. It was also stated that the Plaintiffs were never in possession of the property after the Court auction sale and the Plaintiffs have no right over the property and therefore, they are not entitled to the relief prayed for.
7. The Trial Court held that the Plaintiffs are in possession of the property even after the Court auction sale in favour of the Respondent/Defendant and that was evidenced by Ex.A8 and Ex.A10. The Respondent/ Defendant has lost his right, as he has not taken delivery of the property, as per the provisions of Order 21, Rule 95, within a period of one year, from the date of confirmation of the sale deed or from the date of issuance of the sale certificate and therefore, as per Section 27 of the Limitation Act, the right of the Respondent/Defendant was extinguished and as the Plaintiffs are in possession of the properties, they are entitled to file the suit for declaration and injunction and decreed the suit.
8. The Lower Appellate Court, after elaborately discussing the oral and documentary evidence, held that the documents produced by the Appellants/Plaintiffs were obtained, after the filing of the suit and that would not prove possession of the Plaintiffs. Evidence of D.W.1 to 5, would prove that the Respondent/Defendant was in possession of the property from the date of the sale and there was no need to take possession by filing an application under Order 21, Rule 95 and even without filing the application, possession can be taken, as the Plaintiffs were not in possession of the properties and they also have no right to the property, as the Respondent/Defendant purchased the suit property under the Court auction sale and he is the owner of the suit property. Therefore, the Plaintiff is not entitled to the relief of declaration and injunction and set aside the judgment and decree of the Trial Court and allowed the Appeal.
9. Hence, this Second Appeal.
10. At the time of admission of the Second Appeal, the following substantial questions of law were framed:
i) Whether the judgment of the Lower Appellate Court is not perverse as it is on assumptions and incorrect appreciation of law and fact?
ii) Whether Lower Appellate Court was right in its appreciation of the law as laid down in the decision reported in (93) LW 637?
iii)Whether the Lower Appellate Court was right in its interpretion of the Government records like chitta extract, kist receipts and the adangal?
11. The appeal was dismissed by the Learned Judge of this Court and aggrieved by the same, the present Appellants filed an application in C.A. No. 841 of 2004, on the file of the Hon''ble Supreme Court of India and the Hon''ble Supreme Court allowed the said C.A. and set aside the judgment of the High Court and remanded the Second Appeal to the High Court for hearing afresh as per the provisions of Section 100 of CPC Code. After the appeal was remanded, the following additional substantial questions of law were framed by this Court:
iv)Whether the Court below while reversing the decree and judgment of the Trial Court failed to come into close quarters with the reasons assigned by the Trial Court and then assign its own reasons for arriving at its contra conclusions and as such, failed to discharge the duty excepted of it in arriving at its conclusion?
v) Whether the judgment of the Court below stands vitiated in that its findings have been arrived at on pleadings not put forward in the grounds of appeal by the Respondent?
vi)Whether the Court below has erred in its observations relating to the non-examination of the first Plaintiff during trial ignoring the facts that during trial he had filed an application under Order 18, Rule 3(A) of CPC for his examination as a witness and that the same was opposed by the Respondent and later the application of the first Plaintiff was rejected by the Trial Court and as such on facts it was not open to the Respondent to raise the plea of non-examination of the first Plaintiff during the trial and seek adverse inference against the Plaintiffs?
12. Mr. T.V. Ramanujam, the learned Senior Counsel for the Appellants submitted that in addition to the above substantial questions of law already framed, one more substantial question of law also arises for consideration viz., Whether the right of the Respondent/Defendant is extinguished as per Section 27 of the Limitation Act , as he has not obtained possession under Order 21, Rule 95 of C.P.C.?
13. Mr. K. Duraisami, the learned Senior Counsel for the Respondents submitted that he has no objection for framing the above substantial question of law and further, submitted that yet another substantial question of law viz., Whether the Plaintiffs having lost their right, after the purchase of the property by the Respondent/Defendant, were entitled to file the suit for declaration and injunction against the true owner viz., Respondent/ Defendant? and requested the same also to be considered, while deciding the Second Appeal. Both the Senior Counsel agreed for considering the above two substantial questions of law and therefore, the Second Appeal was heard on all the substantial questions of law.
14. Therefore, in addition to the seven substantial questions of law already framed, the following two substantial questions of law were also framed and arguments were advanced by both the Senior Counsel on all the substantial questions of law:
(vii) "Whether the right of the Respondent/Defendant is extinguished as per Section 27 of the Limitation Act , as he has not obtained possession under Order 21, Rule 95 of C.P.C.?
(viii) Whether the Plaintiffs having realized their right, after the purchase of the property by the Respondent/Defendant were entitled to file the suit for declaration and injunction against the true owner viz., Respondent/ Defendant?
15. It is submitted by Mr. T.V. Ramanujam, the learned Senior Counsel for the Appellants that the Lower Appellate Court erred in holding that the documents viz., Ex.A5 to A.21, were obtained after the filing of the suit, without properly appreciating the fact that the kist receipts and adangal extracts, which were relied upon by the Trial Court for holding that the Appellants continued to be in possession of the property, evenafter the Court auction sale, were obtained after getting permission from the Court and those documents only reflect the entries found in the original revenue records for the fasli year (accounting years) 1381, 1382, 1384, 1389 1391and 1392 and Ex.A10, was the certified copy of the adangal extracts issued by the Revenue Authorities on the basis of the entries found in the adangal in those respective fasli year. Therefore, it cannot be construed that Ex.A10, was obtained, after the institution of the suit and they could be relied upon.
16. The learned Senior Counsel for the Appellants further submitted that Ex.A.9 and A.10 were also issued by the Revenue authorities, after obtaining order from the Trial Court, directing the Revenue Authorities to issue certified copy of the chitta and adangal extracts and though certified copies were obtained after the filing of the suit, entries therein were extracted from the original records for the fasli year 1383 to 1392, which corresponds to 1972 to 1982. Hence, those documents would prove that the Appellants continued to be in possession of the suit properties, evenafter the Court auction purchase by the Respondent/Defendant and that would also prove that the Respondent/Defendant has not take possession, as alleged by him.
17. The learned Senior Counsel further submitted that as the Respondent/Defendant failed to take possession, as per the provisions of Order 21, Rule 95 of C.P.C., within a period of one year and the Appellants continued to be in possession of the property, evenafter the Court auction sale, the right of the Respondent/Defendant was extinguished as per Section 27 of the Limitation Act. The learned Senior Counsel also submitted that even as per the own admission of the Respondent/Defendant, he could not have taken possession of the property, after the Court auction purchase.
18. The learned Senior Counsel submitted that as per the statement filed by the Respondent/Defendant, he took possession on 09.10.1972, and the property was lying vacant at that time and it was further alleged that due to humiliation suffered on account of Court auction sale, the Appellants/Plaintiffs left the Village and therefore, he took possession of the property, which was only vacant site and continued to be in possession thereafter. He further submitted that the Court auction sale was on 07.09.1972, and the sale was confirmed on 09.10.1972 and as per the statement, immediately after the Court auction, the Defendant entered into the suit properties and took possession on 09.10.1972.
19. On the contrary, in evidence, the Respondent/Defendant stated that he took possession of the property on the next day of the Court auction and that must be on 08.09.1972, which is contrary to the allegations made in the statement, wherein he has stated that he took possession of the property on 09.10.1972. Therefore, that would also prove that the Respondent/Defendant could not have taken possession of the suit properties. The learned Senior Counsel further submitted that the Lower Appellate Court had drawn adverse inference against the Appellants/Plaintiffs for the non-examination of the first Plaintiff, without appreciating that the application was filed to examine the first Plaintiff, after the witnesses were examined and that was dismissed, as the Respondent/Defendant opposed the same. Hence, it is not as if the Plaintiff did not come forward to give evidence, but he was not allowed to give evidence due to the technicalities under Order 18, Rule 3(A) of C.P.C., and therefore, no adverse inference could have been drawn against the Appellants/ Plaintiffs for non-examining the first Plaintiff.
20. The learned Senior Counsel therefore submitted that the right of the Respondent/Defendant was extinguished as per Section 27 of the Limitation Act, as the Respondent/Defendant did not get possession through Court by filing an application under Order 21, Rule 95 of C.P.C., within a period of one year from the date of confirmation of the sale and once the title of the Respondent/Defendant was extinguished, the Plaintiffs, who were already having title to the suit property and in enjoyment of the same, are entitled to relief of declaration and injunction.
21. The learned Senior Counsel for the Appellants further submitted that the Lower Appellate Court without properly appreciating the judgment of this Court reported in 1993 LW 637 in the case of
22. The learned Senior Counsel also relied upon a judgment of Bombay High Court reported in
23. Per contra, Mr. K. Duraisami, the learned Senior Counsel for the Respondent submitted that the provision of Order 21, Rule 95 of CPC is not a mandatory provision and even without recourse to that provision, a Court auction purchaser can take possession of the property, if he is capable of taking possession. In the present case, the suit properties are admittedly poonjai properties and it was the specific case of the Respondent/Defendant that he took possession of the properties after the Court auction sale and he has paid the loan amount payable on the land by the first Plaintiff availed by him on the suit properties. He has also filed land documents for the suit properties from the year 1977, which were marked as Exs.B2, B3, B5 B6 and B8 and those exhibits would prove that after the Court auction sale in the year 1972, the Respondent/Defendant was in possession of the properties and the case of the Appellants/Plaintiffs cannot be accepted.
24. The learned Senior Counsel for the Respondent further submitted that Section 27 of the Limitation Act will not be applicable to the facts of this case. As per Section 27 of the Limitation Act, the right to institute the suit for possession of any property will be extinguished on the determination of the period limited under the limitation Act to any person for instituting the suit and that will not be applicable to an application filed in execution of the decree under Order 21, Rule 95. In the present case on hand, the Respondent/Defendant has not filed the suit for recovery of possession or for declaration of title and therefore, his right will not be extinguished, as per Section 27 of the Limitation Act. In support of his contention, he relied upon the judgments reported in 1954 (1) M.L.J. 585 in the case of (Pethaperumal Ambalam v. Chidabaram Chettiar, minore through property guardian, P.E. Eapen) and AIR 1955 Kol 369 in the case of ( Tincourie v. Sri Kishan Chand).
25. The learned Senior Counsel for the Respondent also submitted that the Respondent/Defendant being the Court auction purchaser has got valid title to the suit property and his title will not be extinguished u/s 27 of the Limitation Act and therefore, the Respondent/Defendant is the true owner of the property. Hence, against the true owner, the Plaintiffs who have lost their title after the Court auction sale, cannot maintain the suit for declaration and injunction and in support of his contention, he relied upon the judgments reported in
26. The Learned Senior Counsel for the Respondent further submitted that the Lower Appellate Court after thoroughly analyzing the oral and documentary evidence of both the parties, rightly come to the conclusion that the Respondent/Defendant has got valid title to the suit property and his title was not extinguished by not taking delivery of possession through Court, as per Order 21, Rule 95, and the Appellants/Plaintiffs have failed to prove their possession after the Court auction sale and therefore, the findings of the Lower Appellate Court on facts need not be interfered with in the Second Appeal, as it has become final and therefore, the Second Appeal is liable to be dismissed.
27. Heard both sides.
28. Though it was contended by the Appellants/Plaintiffs in the Trial Court that the properties are punjai properties of the Plaintiffs, it was proved that the properties were purchased in the name of the first Appellant and no document was adduced to prove that the family had a nucleus for purchasing the suit properties in the name of the first Appellant and the properties were purchased in the year 1967 and at that time the Appellants 2 and 3 were minors. Hence, both the Courts have rightly proceeded that the properties were the properties of the first Appellant/Plaintiff and there was no serious objection regarding the character of the property. Admittedly, the suit in O.S. No. 1084 of 1969, was filed against the first Appellant for recovery of amount and in execution of the decree passed in the suit, the property was brought to sale in E.P. No. 344 of 1972 and auction/sale was conducted on 07.09.1972 and the same was confirmed on 09.10.1972 and the sale certificate was issued on 12.01.1973.
29. The case of the Appellants/Plaintiffs was that after the Court auction sale, delivery was not obtained by the Respondent as per the provisions of Order 21, Rule 95, by applying to the Court, within a period of one year and therefore, the right of the Respondent/Defendant to the suit properties was extinguished as per the provisions of Section 27 of the Limitation Act. As a matter of fact, the Trial Court has also held that the right of the Respondent/Defendant was extinguished by not having taken possession of the suit properties by applying to the Court under Order 21, Rule 95 within a period of one year as per the provisions of Article 134 of the Limitation Act.
30. The Learned Senior Counsel Mr. T.V. Ramanujam, also vehemently argued the Second Appeal by applying emphasis on that substantial question of law, which was framed at the time of hearing of the Second Appeal by me, as stated above. Therefore, we will have to see whether the Respondent/Defendant lost his right over the suit property by not taking delivery of possession of the property by filing the application under Order 21, Rule 95, within a period of one year as per Article 134 of the Limitation Act. To appreciate the same, we will have to see whether it is necessary for auction purchaser to apply to the Court under Order 21, Rule 95 for getting possession of the properties, purchased by him in the Court auction.
31. As per Order 21, Rule 95, where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some other person, claiming under a title created by the judgment-debtor, subsequently to the attachment of the such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person, who refuses to vacate the same.
32. Therefore, a reading of Order 21, Rule 95 makes it clear that when the immovable property sold is in the occupancy of the judgment-debtor or any person claiming under him or on his behalf then the same can be taken delivery by applying to the Court by the Court auction purchaser. In this case, it was the specific case of the Respondent/Defendant that after the property was brought to sale, due to the humiliation suffered by the Plaintiffs, they left the village and the properties were lying vacant and he took possession of the property on the next day of the Court auction sale.
33. Admittedly, the properties are Punja properties and it was the specific case of the Respondent/Defendant that he took possession of the property and was cultivating the same thereafter. Therefore, when the property is a vacant land, which could be taken possession by any person, is it necessary to apply to the Court to take possession. This has been answered by the Division Bench of this Court in the judgment reported in 1954 (1) M.L.J. 585 (supra) wherein it has been held as follows:
on the issue of a sale certificate to the purchaser under Order 21, Rule 94, the latter''s title becomes perfected and complete and his right to possession unimpeachable as against the parties to the suit as well as those claiming under them. There is no obligation on his part to apply to the Court for delivery, and it is open to him to obtain possession out of Court.
34. In the Division Bench judgment reffered to supra, it has been made clear that there is no necessity for the Court auction purchaser to apply to the Court for delivery of possession if he is able to take possession of the property without the intravention of the Court. In this case, it was the specific case of the Respondent/Defendant that he took possession of the property and the property was lying as vacant land, as the Plaintiffs left the Village after the Court auction sale and therefore, the non filing of an application under Order 21, Rule 95 to take delivery of the property cannot be put against the Respondent/Defendant .
35. The argument of the learned Senior Counsel for the Appellants that by not taking delivery of the property by invoking provisions of Order 21, Rule 95 within a period of one year, as contemplated under Article 134 of the Limitation Act, the right of the Respondent/Defendant was extinguished as per Section 27 of the Limitation Act also cannot also be accepted. Section 27 of the Limitation Act, reads as follows:
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
36. Therefore, the right to file a suit for recovery of possession will be extinguished, if the same is not filed within the period prescribed under the provisions of the Limitation Act. Section 27 of the Limitation Act, in other words, extinguishes the right of the party from filing the suit for possession and it cannot be made applicable to an application under Order 21, Rule 95. Admittedly, an application under Order 21, Rule 95 has to be filed for claiming possession of the property purchased in the Court auction and it cannot be equated to the suit for possession. This has been clearly stated in the judgment reported in AIR (1955) Kol 369 ( supra), wherein it has been held as follows:
Limitation Act (1908) Section 28, Articles 138, 180 - Suit by auction-purchaser for possession.
Mere failure on the part of an auction-purchaser to take delivery of possession within the time limited by Article 180 is to make it difficult for him to seek the assistance of the Court in order to put him into possession. In spite of his failure in that behalf he may get into possession by an amicable arrangement with the judgment-debtor or in any other way. Article 180 does not prescribe the period of limitation for the institution of a suit by the auction-purchaser. Article 180 merely prescribed the period of limitation for an application for delivery of possession to the auction-purchaser and hence Section28 will not apply. The period of limitation prescribed for a suit by an auction-purchaser in a case whether judgment-debtors are in possession at the date of the sale is prescribed by Article 138 which prescribed the period of 12 years from the date when the sale become absolute.
37. Therefore, by not filing the application under Order 21, Rule 95 , the right of the Respondent/Defendant will not be extinguished as per the provisions Section 27 of the Limitation Act. Hence, the additional substantial question of law No. (vii) is answered against the Appellants.
38. In this connection, the Hon''ble Supreme Court in the judgment reported in JT (1994) 5 S.C. 585 ( supra) has held as follows:
It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the Petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a tresspasser and an injunction cannot be issued in favour of a tresspasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse of claim injunction against true owner.
39. Further, our High Court has also in the judgment reported in 93 LW 637 (supra) held that eventhough the Plaintiff is found to be in possession of the property, as the Plaintiff has no title to the suit property, he cannot maintain any action against the Defendant, who is having title, as a purchaser in Court auction sale and therefore, the Plaintiff is not entitled to the relief of injunction. Therefore, the substantial question of law No. (viii) is also answered against the Appellants and I hold that the Respondent/Defendant being the true owner of the property and the Appellants/Plaintiffs have no title to the suit property, they cannot maintain any action against the true owner.
40. The Lower Appellate Court has discussed the oral and documentary evidence of both the parties and come to the conclusion that the Appellants/Plaintiffs were not in possession of the property and the Defendant has not lost his title to the suit property by not filing the application under Order 21, Rule 95 and the findings of the Lower Appellate Court was not on assumptions and incorrect appreciation of law and facts and therefore, the first substantial question of law is answered against the Appellants. In the judgment reported in Volume
41. In the present case on hand, the facts are different and the suit was filed by the Plaintiffs, who after losing their right over the suit property in the Court auction, filed the suit for declaration and injunction and hence, the judgment referred to supra, will not apply to the case on hand and the substantial question of law No. (ii) is also answered against the Appellants.
42. No doubt, as per the law laid down by the Hon''ble Supreme Court in the judgment reported in
43. The substantial questions of law Nos. 4 and 5 , which were framed, after the Second Appeal was remanded by the Hon''ble Supreme Court to our High Court, cannot be considered as the substantial questions of law as per the law laid down by the Hon''ble Supreme Court while interpreting Section 100 of CPC Further, the Lower Appellate Court elaborately discussed every documents and the oral evidence of the parties and has come to the conclusion that the Plaintiffs are not entitled to the relief prayed for and hence, it cannot be considered that the Lower Appellate Court has failed in its duty, as per the provisions of CPC Therefore, the substantial questions of law Nos. 4 and 5 are answered against the Appellants.
44. Though the first Plaintiff has filed the application to examine himself and that was rejected by the Court, he has not taken any steps thereafter, to establish his right by filing the revision against the said order and he allowed the order of the Trial Court to become final. Therefore, the Lower Appellate Court has rightly drawn adverse inference, on the non-examination of the first Plaintiff, who is the competent person to state about the facts of the case. Even assuming that any such inference can be taken, as contended by the Learned Senior Counsel for the Appellants, in my opinion, that would not in any way advance the case of the Appellants, as the Appellants have no title to the suit properties. Even assuming that they are in possession of the property, without establishing their title in the manner to known to law, they are not entitled to maintain any action for declaration and injunction against the true owner.
45. In this case, it is not pleaded and proved by the Appellants that they had perfected title by adverse possession by continuing to be in possession of the property after the Court auction sale and it is the specific case of the Appellants that they are in possession of the property as true owner. Therefore, in the absence of evidence to prove adverse possession of the suit property, the Appellants/Plaintiffs cannot maintain any action against true owners viz., the Respondent/ Defendant. Therefore, the other substantial questions of law viz., (vi) is also answered against the Appellants.
46. Having regard to the answer given to the substantial questions of law Nos. (vii) and (viii) that the Respondent/ Defendant has not lost his right to the suit property u/s 27 of the Limitation Act, no action is maintainable against the true owner by a person having no title, I do not find any reason to interfere with judgment and decree of the Lower Appellate Court and hence, the judgment and decree of the Lower Appellate Court is confirmed.
47. In the result, the Second Appeal is dismissed. No costs.
