SYED AHMED Vs. SALIMA BI

JUDGEMENT

(1.) The 3rd respondent in R. E. A. No. 220 of 1975 in R. E. P. No. 429 of 1963 in O. S. No. 733 of 1956, Principal District Munsif's Court, Tirupattur, is the petitioner in this civil revision petition. The properties belonged to deceased A. Mohamed Zackria Sahib, whose widow, sons and daughters figure as respondents 1 to 10 in this civil revision petition. Mohamed Zackria executed a mortgage in favour of one Margabandu, the father of 11th respondent herein and a suit in O. S. No. 733 of 1956 was instituted for enforcing the mortgage. On 17-2-1957, a preliminary decree was passed which was later followed up by a final decree on 30-6-1960. In execution thereof, the properties were brought to sale and the 12th respondent who is stated to be a close relation of the l1th respondent, purchased the properties in court auction on 18-3-1964. The sale was confirmed on 29-5-1964 and the 12th respondent also took delivery through court on 29-7-l964. Thereafter, Mohamed Zackria, the original owner of the properties filed a petition R. E. A. No. 282 of 1965 on 24-12-1964 u/s. 47 of the Code of Civil Procedure contending that the court sale held was void as no sale notice was served on him. Accepting that, the sale was also set aside on 23-2-1972 against which an appeal was filed by respondents 11 and 12 herein in C. M. A. No. 46 of 1972, Sub Court, Tirupattur, which was also dismissed. Thereupon, the 1lth respondent herein preferred an appeal before this court in A. A. O. No. 90 of 1973 and on 20-2-1974,this Court dismissed the appeal confirming the judgment and decree of the lower courts. After filing R. E. A. No. 282 of 1965 Mohamed Zackria died. Meanwhile, the 12th respondent sold the properties to the petitioner on 30-12-1964 and the petitioner remained in poss6ssion of the properties. After the death of Mohamed Zackria, respondents 1 to 10 were brought on record and they filed an application in R. E. A. No. 290 of 1975 u/ss. 144 and 151, C. P. C. for delivery of possession of the suit properties to them and also to direct the petitioner and respondents 11 and 12 to account for the income from the suit properties from 29-7-1964 up to the date of' delivery of possession. That application was resisted by the 11th respondent herein contending that his father Margabandu had, instituted the suit on' the mortgage in O. S. No. 733 of 1956 and pursuant to the decree, the properties were sold and purchased by the 12th respondent. herein on 18-3-1964. It was his further case that Mohamed Zackria had leased out the properties to the petitioner herein on 22-2-1962 and subsequent to the delivery of possession of the properties to the 12th respondent herein, the petitioner had purchased the same on 30-12-1964 and there cannot, therefore, be any liability on the part of the llth respondent for accounting. It was also contended by him that respondents 1 to 10 are not entitled to any compensation and that the relief of restitution would not be available excepting as against a person in possession of the properties.

(2.) The petitioner, who figured as the 3rd respondent in that application, contended that he is a bona fide purchaser for value without notice having purchased the properties on 30-12-1964 from the 12th respondent herein who had no connection with the 1lth respondent. It was also the further case of the petitioner that he had deepened the well at a cost of Rs. 2,000/- and that owing to the low fertility of the soil, proper cultivation could not be carried on. The petitioner also claimed that he had planted 70 cocoanut seedlings and had also incurred further expenditure for keeping a watchman etc. and also claimed to have improved the land by spending a sum of Rs. 2,000/- An objection was raised to the maintainability of the application u/s. 144. The petitioner claimed that respondents 1 to 10 are liable to pay a sum of Rs. 6,000/- together with another sum of Rs. 600/- towards the stamp duty and registration charges etc. A further claim for compensation in respect of the value of the cocoanut trees was also made by the petitioner against respondents 1 to 10. The liability to render an account of the income from 29-7-1964 was also disputed by the petitioner.

(3.) The learned District Munsif, Tirupattur, who enquired into the application, held that the application is maintainable and that respondents 1 to 10 are entitled to be put back in possession of the properties by the petitioner, as the petitioner is not a bona fide purchaser for value and his purchase of the properties was with the knowledge of the proceedings initiated by late Mohamed Zackria. The income from the properties was held to have been expended in the planting of cocoanut trees and maintaining them and the expenses and the income were found to be equal and consequently, it was held that the petitioner was not liable to render any account of the income claimed by respondents 1 to 10. Ultimately, the learned District Munsif, directed that the petitioner should deliver peaceful possession of the properties to respondents 1 to 10. Aggrieved by this, the petitioner preferred an appeal in C. M. A. No. 34 of 1976, Sub Court, Tirupattur, while respondents 11 and 12 herein preferred C. M. A. No. 39 of 1976, Sub Court, Tirupattur, against the same order. Both the appeals came to be dealt with together and disposed by a common judgment. The learned subordinate Judge, Tirupattur, on a consideration of the facts and circumstances of the case held that restitution in favour of the respondents I to 10 had been rightly ordered by the court below and that that conclusion does not merit any interference in appeal. Consequent to this conclusion, the appeals were dismissed. It is the correctness of this order that is challenged by the petitioner in this Civil revision petition.