RANGARAO RAMARAO DESHPANDE Vs. CHANNAPPA BASAPPA LAKAMANAHALLI

JUDGEMENT

(1.) Appellant is defendant 1, 1st respondent is the plaintiff, respondent 2 is defendant 4, and respondents 3, 4 and 5 are defendants 5, 6 and 7. On 27-7-65, the plaintiff filed a suit for a declaration that the court proceedings under which the defendants have got the suit property attached before judgment and the further proceedings leading to the sale of the property in execution and delivery of possession are void and are not binding on the plaintiff's rights as a tenant. He prayed for a permanent injunction restraining the defendants from interfering with his possession of the suit property and in the alternative, for delivery of possession in case the defendants are found to be in possession of the suit property. The suit property is Survey No. 554 measuring 13 acres 2 guntas situate in Amminabhavi village. Dharwar taluk. Originally it was a Watan land belonging to defendants 5 to 7. On the abolition of Watans, defendants 5 to 7 became the owners of the same on a re-grant by the Government. Plaintiff was admittedly a tenant of the suit property under defendants 5 to 7 prior to 1955. On 24-5-55, defendants 5 to 7 executed a registered agreement to sell, Ext. P-3, agreeing to sell the suit land for Rs. 8,500 and an advance of Rs. 6,000 was paid the same day, and the plaintiff was allowed to continue in possession of the property. Defendants 1, 2 and 3 obtained a money-decree against the plaintiff in L. C. 174/ 57. On 5-4-57, the suit property was attached before judgment. The decree was for Rs. 5,207. In execution of the decree in L. D. 26/1962 the suit property was brought to sale. The plaintiff was served with notice under Order 21, Rule 66. C. P. C. but no objection was filed by him. Defendant 6 filed an application on 4-9-62 before the execution court stating that the suit property belongs to him and that there was only an agreement of sale in favour of the plaintiff. Thereupon, the court asked defendant 1 to make a statement. Defendant 1 accordingly filed a statement on 11-9-72 which is Ext. P-7. He stated therein that under Ext. P-3, the agreement of sale, the plaintiff was put in possession and that the plaintiff has acquired rights under Section 27-A of the Specific Relief Act, and that the sa'd right, title and interest of the plaintiff are to be sold. The sale was thereafter held and defendant 1 himself purchased the suit property. The plaintiff filed an application under Order 21, Rule 90, C. P. C. for setting aside the sale, but it was dismissed. The sale was confirmed. Ext. D-7 is the sale certificate under which all the rights and title of the plaintiff are purported to have been sold. The auction-purchaser defendant 1, applied for delivery of possession in Delivery Proceeding No. 25/65 and in that proceeding defendant 4 has been appointed receiver of the suit property and he has been put in possession.

(2.) According to the plaintiff, he continues to be a tenant in spite of the agreement of sale, Ext. P-3 and his tenancy rights in the suit property cannot be attached and sold and he cannot be evicted from it under the Mysore Tenants (Temporary Protection From Eviction) Act, 1961. The trial court dismissed the suit as against the receiver since the required notice under Section 80, C. P. C. had not been issued by the plaintiff and granted a decree declaring that the attachment before judgment and the sale in court auction and the sale certificate are illegal and void and therefore not binding on the plaintiff. The relief for permanent injunction or for possession was rejected. Defendants 1, 2 and 3 appealed and the lower appellate court dismissed the appeal. The present second appeal is by defendant 1 only.

(3.) The contentions urged on behalf of the appellant by Mr. B. K. Rama-chandra Rao are these: The tenancy right of the plaintiff was destroyed when Ext. P-3 came into existence on 24-5-55 and the Tenancy Acts are not applicable that the character of possession changed after the date of Ext. P-3 and the plaintiff continued in possession only as owner since Ext. P-3 amounts to an alienation of the property. What is sold in the execution sale is the right of the plaintiff under Section 53-A of the Transfer of Property Act and that is what has been purchased by defendant 1 in execution sale. The suit is barred by res judicata since the plaintiff did not urge this contention when the property was attached before judgment and did not do so even after service of notice under Order 21, Rule 66; the sale became absolute and it is not now open to the plaintiff to raise this contention.