SR POTTI NAYAKAR Vs. SUPPAMMAL

JUDGEMENT

(1.) The first question this case is whether any of the conditions specified in Section 115 of the Civil Procedure Code for the exercise of our revisional powers are established. We can of course proceed only on the facts as found by the lower Court; and shortly the decision on the facts found is that a trespasser, who enters on possession of property sold in court sale, before the sale took place " holds an interest in that property by virtue of a title acquired before the sale," and is entitled to apply under Order XXI, Rule 89. If, as petitioner contends, the lower Court has used the powers conferred by the rule on the application of a person, who has not the legal character specified therein, such use of powers would be the exercise of a jurisdiction not vested in it by law. The present case in fact closely resembles in this respect Sundaram V/s. Mausa Mavuthar 63 Ind. Cas. 937 ; 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29 M.L.T. 269 : (1921) M.W.N. 272 Following that authority I hold that petitioner's contention if established, will justify interference in revision.

(2.) It is said next that the lower court reached its finding in favour of the respondents possession in the absence of or without considering evident. This is incorrect, since there is evident on the point on record and the judgment contains are reference to it

(3.) Turning now to the question which arise with reference to the lower court jurisdiction whether a trespasser in possession has an interest in properly in virtu of a title acquired before the sale, I hold that he has not. We have been shown several authorities for holding that persons possessing various legal characters have been recognised as entitled to apply under Rule 89, or under Section 310-A of the former Code. But it is useless to refer to them in detail, since none deals with the case of a mere trespasser or lays down any general principle by which claims to the application of the rule Can be tested. Other cases relied on by respondents, as for example Naraycm Vasudemcharya Kathi V/s. Amgaude Malagaude 62 Ind. Cas. 104 : 45 B. 1094 : 23 Bom. L.R. 455. and Narayan Kutti Qownden V/s. Pachiammal 15 Ind. Cas. 206 : 36 m. 426 : 11 M.L.T. 174 : (1912) M.W.N. 353 : 22 M.L.J. 364 are irrelevant, since they deal either with the right to reimbursement under Section 69 of the Indian Contract Act for a payment actually made, or with the nature of the interest contemplated in Section 91 of the Transfer of Property Act.