VARKEY JOSEPH POTHANIKATT Vs. BOARD OF REVENUE TRIVANDRUM

JUDGEMENT

(1.) The appeal is against the judgment of a learned Judge who dismissed the writ petition to quash Ext. P7 order of the Board of Revenue. The writ petitioner was a purchaser in revenue sale of an extent of 44 cents of land which was attached on 24th March 1939. The property was under Government management from 15th December 1940, The sale was on 12th July 1946 and was confirmed on 16th November 1946. On 16th November 1948 there was a publication declaring the purchaser to be the owner of the property. The sale certificate was issued on 29th March 1952 and registered on 23rd May 1952. Symbolical delivery was effected on 23rd December 1952 on the ground that respondents 3 to 8 in the writ petition were squatters on the property and therefore actual possession could not be given to him. On application being made to the Collector, he by Ext, P1 proceedings dated 21st July 1964 directed to put the purchaser in possession. That again resulted in Ext. P4 order granting only symbolical delivery. O. P. No. 467 of 1967 was moved in this Court against that order which resulted in Ext. P5 judgment dated 13th November 1968 by one of us (myself) holding that Ext. P4 order was unhelpful, and was a non speaking order, and directing investigation and enquiry into the question as to why the purchaser was not entitled to actual possession. In pursuance of this judgment the Tahsildar passed Ext. P6 order dated 14th November 1971 holding that the purchaser was not entitled to actual possession. That order was carried up in revision to the Board of Revenue which resulted in the impugned order Ext. P7 reversing and setting aside Ext. P6 and holding that the writ petitioner was entitled only to symbolical delivery.

(2.) The learned Judge after noticing the facts and discussing the position found that respondents 3 to 8 were squatters on the property and they were claiming in their own right, and therefore, having regard to the provision of O.21 R.99 of the Civil Procedure Code which provides for delivery of possession after removal of obstruction, the purchaser was not; entitled to get actual possession of the property. S.41 of the Travancore - Cochin Revenue Recovery Act which is the relevant provision reads:

(3.) We may now refer to certain decisions in regard to the provisions of the Civil Procedure Code which were noticed by the learned Judge and distinguished. One of these decisions on which considerable reliance was placed for the writ petitioner was the judgment of Sulaiman, J. of the Allahabad High Court (as he then was) in Sobha Ram v. Tursi Ram AIR 1924 Allahabad 495. The decision is noticed in paragraph 4 of the learned Judge's judgment and there occurs the following quotation from the said judgment: