ZAHEERA BANU KAREEM Vs. GOMATHI BAI G KAMATH

JUDGEMENT

(1.) pursuant to the reference made by the Hon'ble Supreme Court by its order dated 31-10-1991 in civil appeal No. 624 of 1973 finding of this court is given on the point, viz., "legal effect of the order of the restoration of the land in favour of bashir ahmed".

(2.) in order to see that both sides are given sufficient opportunity to establish their case, this case was adjourned many times as requested by both sides. Thus the matter was heard on several dates of hearing. On the point involved both sides made me to go through various documents produced in the case, important sections of the Mysore land revenue code and the Bombay land revenue code, Section 43 of the Transfer Of Property Act and the authorities relied upon by both sides in support of their rival contentions.

(3.) to give a finding on the point of reference made by the Hon'ble Supreme Court, it is proper to mention a few facts, as their narration will avoid the confusion which had set in. Originally one kaushik was the owner of the lands in dispute. He sold the said lands to one syed basheer ahmed in the year 1942. The said syed basheer ahmed did not pay the land revenue in respect of the lands in question for some time. As syed basheer ahmed became defaulter in payment of land revenue, the state exercising its power under the Provisions of the Mysore land revenue code, 1888 (hereinafter referred to as 'the 1888 code') forfeited the said lands to the government during the year 1948-49. As there were no bidder, in view of Section 55 of the 1888 code the government itself purchased the said lands in survey nos. 29 and 30 of sonnamaranahalli village and survey nos. 35 and 40 of gullia nandi gunta village, thubagere hobli, doddaballapur taluk, Bangalore district. Earlier to this, there was some dispute between padmanabha kamath and syed basheer ahmed. Padmanabha kamath filed a suit against syed basheer ahmed in the High Court of Madras in original suit No. 148 of 1946. The said suit was decreed in favour of padmanabha kamath. The decree was transferred to the district court, Bangalore, and was put in execution in execution case No. 6 of 1953. The executing court brought the lands for sale. On 3-9-1953, padmanabha kamath purchased the said lands as he was the highest bidder. On 7-6-1954 the sale in favour of padmanabha kamath was confirmed. On 16-3-1955, the sale certificate at exhibit p-3 in respect of the lands in question was issued to padmanabha kamath. On 2-1-1965 in miscellaneous case No. 127 of 1955 possession of the lands in question was handed over to the auction-purchaser, padmanabha kamath. Upto this date by virtue of the forfeiture of the land by the government in the revenue records the nature of possession was described as 'government phada' under the kathedar column. On 2-1-1956 padmanabha kamath sold the lands under exhibit p-1 to Smt. Gomathi bai g. Kamath, w/o. Govinda kamath, resident of Bombay, for valuable consideration. From the date of purchase till 1960-61 the name of the plaintiff, i.e., Smt. Gomathi bai g. Kamath, was shown in the exhibits at exhibit p-8 series as the person in possession of the property either authorised or unauthorised. The plaintiff contended that during the last week of july, 1967, when the plaintiffs husband went to the lands in question, he found that the defendant i.e., Smt. Zaheera banu kareem, was cultivating the lands, viz., Sy. Nos. 29 and 30 of sonnamaranahalli. This action of the defendant was objected by the plaintiff by issuing a legal notice and subsequently the plaintiff filed a suit, original suit No. 31 of 1967, in the court of the principal rural civil judge, Bangalore, for declaration and possession of the lands in dispute and for other reliefs, viz., Mesne profits, etc. In the plaint the plaintiff contended that (i) padmanabha kamath by virtue of purchasing the lands in court auction perfected his title to the lands and as she had purchased the lands from padmanabha kamath her title to the lands was a valid one; (ii) the right, title and interest over the lands in question were transferred to the plaintiff by such sale as per the sale deed dated 2-1-1956 at exhibit p-1.