RAMCHANDRA Vs. LAXMAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiff under the Letters Patent from the judgment of Mr. Justice Bhutt delivered in Second Appeal No. 91 of 1948. A few facts may be stated before we consider the points that have been raised by Mr. Mudholkar on behalf of the appellant in this appeal.

(2.) SURVEY No. 21 of mouza Anjangaon Bari, tahsil and district Amravati, originally belonged to one Kisan. He sold the land to the plaintiff who is the present appellant, on 5-6-1926. Kisan's son Shra-wan aggrieved by the transfer effected by his father filed civil suit No. 73 of 1928 in forma pauperis for avoiding the transfer and for possession of the land. Shrawan obtained a decree in the suit on 30-11-1929. It appears that there was an appeal preferred by the present plaintiff against the decree in favour of Shrawan. That appeal came to be dismissed on 9-4-1931. It may be noted that the trial Court, when it passed a decree for possession in favour of Shrawan, also passed the necessary orders for payment of Court-fees under O. 33, R. 10 of the Code of Civil Procedure. The learned trial Judge ordered Shrawan to pay the amount of Court-fees which would have been paid by him if he had not been permitted to sue as a pauper. This amount of Court-fees was under the said provisions declared to be the first charge on the subject-matter of the suit. In execution of this order for payment of Court-fees, the Collector on behalf of the State Government attached survey No. 21 which was the subject-matter of the suit and brought it to auction sale. It appears that this attachment was effected sometime in the year 1935. Thereafter there were two attempts made for bringing the property to sale. We are told that in December 1937 the property was brought to sale for the first time. For some reason or other which it is not now necessary to investigate into, that sale was not completed. Then again, in January 1939 there was a second attempt to hold a sale. That attempt also proved abortive. Then finally on 25-8-1945 the auction sale was held and in the said auction sale the present defendant purchased the property. The auction sale was confirmed on 7-5-1946 and the defendant was put in possession of the property sometime in July 1946.

(3.) IT may be noted that although Shrawan had got a decree for possession of the property survey No. 21, no attempt was made on his behalf when he was a minor to execute that decree or by himself within three years after he attained majority. It is Stated before us that Shrawan was born on 1-11-1928 and it is not now therefore disputed before us that the last date on which he could have himself executed the decree for possession was on 1-11-1944. Thereafter, the period for applying to execute the decree expired and the present plaintiff, in spite of the decree against him, continued in uninterrupted possession till he was dispossessed in July 1948 by the defendant in whose favour the auction sale had been held and confirmed. The present suit has been instituted by the plaintiff for possession of survey No. 21 against the defendant on the ground that at the date of the auction sale he had become the owner of the property by right of adverse possession for over 12 years and therefore, there was no right, title or interest subsisting in Shrawan which could be or which was put up for sale and auctioned in favour of the present defendant. The defendant contended that there was no adverse possession completed by the plaintiff and that the plaintiff had not become the owner by right of adverse possession. The defendant further contended that the State Government had a statutory and first charge over the property survey No. 21 and in enforcement of that charge the property had been brought to sale and had been purchased by the defendant and, therefore, no question of the plaintiff's title, even assuming that there was such title acquired by him by adverse possession, arose as against the defendant who had purchased the property in execution of an order which had created a statutory charge in favour of the State Government. The trial Court held that the plaintiff had acquired a title by adverse possession before1 the property was brought to sale in 1945 and, therefore, there was no right, title or interest of Shrawan subsisting which could be put up in auction and sold to the defendant. Accordingly, it made a decree in favour of the plaintiff. There was an appeal preferred to the District Court by the defendant. The learned Additional District Judge, however, held that the property having been sold in enforcement of the statutory charge created in favour of the State Government, no question of adverse possession arose and accordingly he dismissed the suit and allowed the appeal. The same view was taken by Mr. Justice Bhutt in second appeal.