GAJI BAI Vs. S K BOHRA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for possession.

(2.) THE facts now not in dispute are that one Tara Chand obtained a decree for money, on account of arrears of rent against Kesrimal. In execution of the decree, a house belonging to the judgment debtor Kesrimal was attached and got auctioned. THE house was purchased by Javer Chand, the elder brother of the present appellant in the auction sale and a sale certificate was issued in favour of the purchaser on 28. 1. 61. THE purchaser was able to get possession of the lower portion of the house from the tenant Lal Bhai but could not get actual possession of the upper storey, which was in possession of another tenant Shri S. K. Bohra, the present respondent. An order directing grant of symbolic possession was obtained on 3. 6 61 and in pursuance of that warrant, the tenant Shri S. K. Bohra agreed to hand over possession within ten days on 24. 6. 61. He made an endorsement to this effect on the warrant itself, However, he failed to hand over possession within the agreed time and symbolic possession was delivered to the auction purchaser on 5. 7. 61. THE decree holder thereafter issued a notice to Shri Bohra to hand over actual possession on 9. 8. 61. But Shri Bohra failed to deliver the same and, therefore, the auction purchaser filed a suit for possession on 2. 5. 63. Shri Bohra contested the suit on various grounds but his main defence was that he had already handed over possession to Shri Tara Chand, the decree holder on 18. 11. 61 because he was the tenant of Shri Tara Chand since he was not now in possession, the suit against him was not maintainable It was also alleged by him that the house in dispute had been mortgaged by Kesrimal in favour of Tara Chand and Tara Chand had rented it out to him. It was also alleged that Tara Chand was a necessary party to the suit.

(3.) AS already stated above, it is not in dispute that Shri S. K. Bohra had made an endorsement on the warrant of possession on 24. 6. 61 and thereafter symbolic possession had been taken by the auction purchaser on 5. 7. 61. That being so, it clearly appears that Shri S. K. Bohra very well knew that now the property had been purchased by the present plaintiff Roopchand and that he was entitled to take possession then of. Thereafter he could not have parted with possession of this property in favour of any third person and that third person could not have acquired any right therein. The principle of lis pendence embodied in s. 52 of the Transfer of Property Act (hereinafter called 'the Act') was clearly to be attracted in these circumstances inasmuch as right to immovable property was directly and specifically in question in those execution proceedings and by the endorsement made on the warrant as also by the delivery of symbolic possession, Shri S. K. Bohra, who was then in possession of the property had become a party to those proceedings. Similarly this principle would also bind the decree holder Tara Chand, who was certainly a party to the execution proceedings. AS a matter of fact, he would be estopped from challenging the right of the auction purchaser to obtain possession from Shri Bohra inasmuch as it was Tara Chand who had brought the property to sell by getting it attached and thereby making the auction purchaser believe that the property belonged to the judgment debtor and was liable to sale. The question of mortgage in favour of Tara Chand now stands settled by the decision of this Court reported in Tara Chand vs. Kesrimal (1 ). Otherwise also when the property had not been sold subject to any mortgage as has been held by the two courts below, Tara Chand could not have claimed possession as a mortgagee and Shri S. K. Bohra could not have handed over possession to him after he had made the endorsement in favour of the auction purchaser on 24. 6. 61. It has been held in Pethaperumal vs. Chidambaram (2) that on the issue of a sale certificate to the purchaser under O. 21, R. 94, the latter's title becomes perfected and complete and his right to possession unimpeachable as against the parties to the suit as well as those claiming under them. In Zainuddin Hussain vs. Sohan Lal (3) a learned Single Judge of that Court while differing from a decision of the Calcutta High Court reported in Aman Ali vs. Mir Hossain (4) observed as under: - "with all respect to the learned Judge, who decided that case, I am not prepared to hold that the sale certificate is not a presumptive evidence of what was sold under the sale proclamation specially when there is no other evidence available to the contrary. I would in this connection follow the Division Bench decision of our own Court reported in ILR 23 Pat. 115 mentioned above. It is nobody's case that the estoppel arises on the sale certificate. Learned Counsel for the plaintiffs has based the argument of estoppel on the ground that the description of the property given in the sale certificate was the description of the property given in the sale proclamation also which had led the predecessors-in-interest of the plaintiffs to change their position and offer to pay Rs. 7,500/- at the auction sale. " I would respectfully agree with this view and I am clearly of the opinion that the decree holder, who got the property auctioned and that too without any incumberance is now estopped from challenging the right of the auction purchaser to claim possession. That being so, Shri S. K. Bohra who alleges to be a tenant of the mortgagee (alleged), Shri Tara Chand cannot also challenge the right of the auction purchaser to obtain possession. By merely alleging that he had handed over the possession to Shri Tara Chand, S. K. Bohra could not have driven the auction purchaser to file another suit for possession against Tara Chand. In these circumstances. I am clearly of the opinion that Shri S. K. Bohra could not have escaped his liability to hand over possession to the auction purchaser merely by alleging that he had handed over possession to Shri Tara Chand and in the peculiar circumstances of the case, Shri Tara Chand could not have been deemed to be a necessary party to this suit in whose absence an effective decree could not have passed. AS already stated above, Tara Chand himself was bound by the sale certificate as also the symbolic possession obtian-ed by the auction purchaser in proceedings to which Tara Chand himself was a party. It would be a trevasty of justice in allowing Shri Bohra to join hands with Shri Tara Chand and deprive the auction purchaser from the possession of the suit property, which he had purchased at an open auction, which had been brought about by Tara Chand himself. The learned counsel for the respondent, however, placed strong reliance upon Devi Sahai Palliwal vs. Union of India (5) wherein their Lordships of the Supreme Court had observed as under : - "the greater hurdle and one which is insurmountable in the way of the appellant is that the entire cause of action is misconceived. If Gaya Prasad had taken possession and if Gaya Prasad according to the appellant is a trespasser the suit would lie against Gaya Prasad. It is admitted that the respondent is no longer in possession and was not in possession of the premises after he had delivered possession to Gaya Prasad. If any decree was passed in favour of the appellant against the respondent obviously if the decree had to be executed it could not be executed against the respondent. Therefore the only remedy that the appellant had was to file a suit against Gaya Prasad. " On the very face of it, his authority is not at all applicable to the facts of the present case. Here Tara Chand cannot be said to be a trespasser. He was a party to the suit in which the property in dispute was put to auction. It was he at whose instance, the property was auctioned and he being a party to those proceedings cannot challenge the right of the auction purchaser to obtain possession. He thus is a person bound by those proceedings and the present suit for actual possession against S. K. Bohra is nothing but a continuation of those proceedings because it is in pursuance of the symbolic possession obtained by the auction purchaser that the present suit for actual possession has been filed. In these circumstances, this authority is of no avail. Gaya Prasad, according to this authority was the person who would not be bound by a decree passed against the defendant in that case but it is not the position here. Tara Chand would be bound by the decree passed against Shri S. K. Bohra because he is alleged to have given possession after the symbolic possession had been handed over to the present: plaintiff auction purchaser. In my opinion, the learned District Judge was not justified in holding that the question of estoppel could not be gone into in the circumstances of this case as it was not pleaded. A perusal of the plaint in the suit would go to show that all essential facts on the basis of which the estoppel is based find mention in it and it cannot be said that a new plea was sought to be raised. In these circumstances, the learned District Judge was wrong in dismissing the suit.