NANDKISHORE AND OTHERS Vs. DAMODAR BALAJI

JUDGEMENT

(1.) THIS is defendants' appeal from the reversing judgment of the Third Additional District Judge, Nagpur, in Civil Appeal No. 1-A of 1939, delivered on 30th March 1939, The dispute relates to a house site situate in the abadi of Tiroda which is somewhat intermediate between a village and a town. The respondent is the malguzar lambardar and the appellants are residents of Tiroda, appellant 2, Umraoprasad being a patwari. He is the father of the two appellants. Umraoprasad purchased in auction sale in 1935 a house standing on the site which is marked in the map filed with the plaint by letters R L W A P F B Bh M. It was alleged in the plaint that the defendants purchased at the auction only a part of that site but that they had subsequently taken possession of the rest of that plot wrongfully without the consent of the plaintiff. The defendants contended that the entire site in dispute was comprised in the auction sale and averred that the previous owner, (who was also in occupation of the site) by name Mahadeo, was the absolute owner of the house as well as the site and that he had transferable interest in it. It was further contended that the plaintiff was aware of the auction sale in favour of defendant 2 (appellant 2), that he neither objected to the sale nor the expenditure by defendant 2 of Rs. 325 on construction of a kotha and the repairs to the house and that his conduct amounted to acquiescence sufficient to estop him from asserting his right to eject the defendants. The plaintiff denied that Mahadeo was an absolute owner, that he had any interest in the site in dispute and that the improvements in the house were effected by defendant 2. The trial Court held that the entire site was covered by the auction sale and that Mahadeo was not the absolute owner of the house and the site but it held that the plaintiff had acquiesced in the improvements effected by the defendants and consequently estopped from disputing their right to occupy the site as licensees. The lower appellate Court affirmed the trial Court's finding that the entire site had been purchased under the auction sale and that Mahadeo had no transferable interest in the site but it dissented from the finding on the point of acquiescence.

(2.) AN attempt was made in this appeal to show that Mahadeo was an owner of the site and not a mere licensee. But that attempt must fail by reason of the absence of any material on the record to prove that the original occupant Wamanrao or Mahadeo the predecessor of the defendants had acquired any higher rights than those of a licensee. The point on which stress is laid is that relating to acquiescence. It is said that the lower Court was wrong in persuading itself that the plaintiff lambardar was not aware of the auction sale and further that he had been under the impression that the defendants built the kotha and executed repairs of the house not as owners but only as tenants of Mahadeo. These are mere questions of fact which are not relevant in second appeal. Assuming, however, that the lambardar had full knowledge of the auction sale as well as of the improvements effected by the defendants it does not follow that there was any acquiescence on Ms part of such a nature as would operate as estoppel. There is no reason why the lambardar should object to the auction sale inasmuch as even a licensee is full and absolute owner of the superstructure. He was not bound to intervene in the execution proceedings and see what actually was sold, namely, the house alone or the house along with the site. It is a well-recognised rule of law that when property is sold in execution of a money decree all that passes to the purchaser is the right, title and interest of the judgment-debtor. In any case, the law did not impose any obligation on the plaintiff as lambardar to assert his right in the proceedings. Consequently his knowledge of the auction sale cannot have any legal significance.