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Kota Narayana Vs. Pathivada Suryanarayan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 10 of 1971
Judge
Reported inAIR1973AP94
ActsCode of Civil Procedure (CPC), 1908 - Sections 65 - Order 21, Rule 36 - Order 34, Rule 5; Transfer of Property Act, 1882 - Sections 8 and 55; General Clauses Act, 1897 - Sections 3; Andhra Pradesh General Clauses Act, 1891 - Sections 3
AppellantKota Narayana
RespondentPathivada Suryanarayan and ors.
Advocates:K. Raghavarao, Adv.
Excerpt:
property - entitlement of value of crop - section 65 and order 21 rule 36 and order 35 rule 5 of code of civil procedure, 1908, sections 8 and 55 of transfer of property act, 1882, section 3 of general clauses act, 1897 and section 3 of andhra pradesh general clauses act, 1891 - whether purchaser-appellant of agricultural land at court sale held in execution of mortgage decree entitle to value of crop standing on time of delivery of possession - by virtue of such sale ownership stood transferred to appellant - as a result the legal incidents of such transfer clothe him right to realize rents and profits - held, appellant entitled to realize value of such crop raised subsequent to sale standing on land purchased by him on date of delivery of possession. - .....land at a court sale held in execution of a mortgage decree is entitle to the value of the crop standing on the basis at the time of delivery of possession.2. the sale in execution of the decree in o. s. no. 219 of 61 on the file of the district munsif, rajam was held on 4-4-1968 and the same was confirmed on 6-6-1968. but the auction purchaser filed e. a. no. 136 of 68 on 24-10-1968 for putting him in possession of the property along with the crops standing thereon. accordingly possession of the land along with the standing crop was delivered to him on 2-11-1968. the second judgment-debtor filed a petition objecting to the delivery of the crop and requested for re-delivery of the crop. the court initially directed that the crops be harvested, sold and the value realised.....
Judgment:

1. The short question that arises for consideration in this appeal is whether the purchaser of agricultural land at a court sale held in execution of a mortgage decree is entitle to the value of the crop standing on the basis at the time of delivery of possession.

2. The sale in execution of the decree in O. S. No. 219 of 61 on the file of the District Munsif, Rajam was held on 4-4-1968 and the same was confirmed on 6-6-1968. But the auction purchaser filed E. A. No. 136 of 68 on 24-10-1968 for putting him in possession of the property along with the crops standing thereon. Accordingly possession of the land along with the standing crop was delivered to him on 2-11-1968. The second judgment-debtor filed a petition objecting to the delivery of the crop and requested for re-delivery of the crop. The court initially directed that the crops be harvested, sold and the value realised therefrom deposited in the court.

3. In order to determine the points in controversy, it has to be ascertained when exactly the sale was completed in the eye of law. Although the sale which was confirmed on 6-6-1968, it relates back to the date of sale. That proposition is no longer res integra. In Janak Raj v. Gurudial Singh, : [1967]2SCR77 it was laid down by the Supreme Court that the title of the purchaser relates back to the date of sale and not to that of its confirmation. Although the sale was confirmed on 6-6-68 as the sale in this case was held on 4-4-68, the auction-purchaser, appellant herein became entitled to the land on the date.

4. It is argues by the learned counsel for the appellant auction-purchaser that as title passed to the auction-purchaser on the date of the sale, he was entitled to immediate possession and the judgment-debtor was not authorised to raise any crop and even if he has done so, he cannot claim the same after the auction-purchaser has applied for possession. The auction-purchaser is entitled to all the profits arising out of the land from the date of the sale.

5. It is, however, urged on behalf of the judgment - debtor that on the date when the sale was held, the land was fallow and there was no crop standing thereon and that as only the land was sold, the auction purchaser was entitled to only the land as the crop was raised subsequent to the sale and before the auction purchaser applied for delivery of possession. It is also contended by the learned counsel for the respondents that the learned counsel for the respondents that by failing to take delivery of possession immediately after the sale was confirmed, the auction purchaser cannot claim the standing crop raised by the person in possession.

6. In order to appreciate the contentions raised by the learned counsel for the parties, it is necessary to note certain provisions of the Transfer of Property Act and the Code of Civil Procedure. Section 3 of the Transfer of Property Act defines 'Immovable property' as follows :-

'Section 3. In this Act, unless there is something repugnant in the subject or context, 'Immovable property does not include standing timber, growing crops or grass'

Clauses Act define 'Immovable property' as follows :-

'Immovable property shall include land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth'. Neither the Transfer of Property Act nor the General Clauses Act define 'land' as such; but by virtue of definition of 'immovable property' contained in the Transfer of Property Act, 'land' is necessarily included in the term 'immovable Property'. Yet, having regard to that definition of 'immovable property', even if 'land' is included in that term, growing crops are excluded therefrom. Apparently, this may support the respondents, contention that when only the land was put the sale, the auction-purchaser could get title only to the land but not to the crops raised thereon as standing crops were not specifically brought to sale. This contention however ignores the fact that the value of the standing crop that is now claimed by the auction-purchase is not of the crops that were raised prior to the sale and were standing on the land on the date of sale. Hence that question does not arise for consideration in this appeal. The crops that were standing on the land when the decree-holder applied for delivery were admittedly raised subsequently to the dated of sale i.e., 4-4-1968, i.e., after title to the land passed to the auction-purchaser. Section 8 of the Transfer of Property Act lays down that 'unless a different intention is expressed or necessarily implied, a transfer of property passes forth the with to the transferee all the interest which the trasferor is then capable of passing in the property and such incidents include, where the property is land the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth...... Thus although, land which is 'immovable property' does not include crops growing thereon, still when there is a transfer of property by virtue of a sale, all the interests of the transferor stand transferred to the purchaser together with the legal incidents thereof. Such legal incidents as laid down in Section 8 of the Act include 'rents and profits' thereof accruing after the transfer and also include all things attached to earth. Further sub-section (4) (a) of Section 55 of the Transfer of Property Act lays down :- 'Section 55(4), The seller is entitled-- (a) to the rents and profits of the property till the ownership thereof passes to the buyer'.

Correspondingly, sub-section (6) of Section 55 of the Act declared that 'buyer is entitled where the ownership of the property is passed to him, to the rents and profits thereof'. Thus from the date of sale i.e. 4-4-1968 though the sale was confirmed on 6-6-68 as the buyer became the owner of the property purchased by him, he also became entitled to the rents and profits thereof as a legal incident of the property being transferred to him as laid down in Section 8 and sub-section (6) of Section 55 of the Transfer of Property Act. There is no provision under the Code of Civil Procedure as applicable to the State of Andhra Pradesh which declared that if the person in possession either on the date of the sale or on the date of delivery of possession has raised any crop on the land, such person would be entitled to harvest the same or would be entitled to the value thereof even after the auction-purchaser has applied for delivery. In the absence of any such specific provision the general principles applicable to the Transfer of Property Act and the legal incidents thereof must also apply to the sale held in execution of the decree. In Atul Hazara v. Uma Charan, 20 Cal WN 796 = (AIR 1916 Cal 339) it was held that the decree-holder is entitled to the crops standing on the land on the date of delivery of possession. In Maung Kan v. Maung Po Tok. AIR 1939 Rang 388 also the same view was taken and it was held:

'Where the decree- holder is put in possession of land such possession includes the standing crops. The judgment-debtor cannot re-enter in order to reap and dispose of the crops which he had cultivated upon the land'.

Sen J. Beni Prasad v. Manaklal, AIR 1953 Nag 9 rejected the plea of the appellant based on a local amendment to Order XX, Rule 14, C.P.C., which lays down that if there are crops standing on the property, possession of the property shall not be delivered to the plaintiff until such crops have been reaped. The plea of the appellants in that case was rejected as there was no amendment to the relevant provisions relating to decree of immovable property and delivery of possession in execution thereof. In Bhagavadas v. Soma Iyer, : AIR1969Ker263 it was held:-

'Under Section 65 of the C.P.C., the property is to be deemed to have vested in the purchaser from the date of sale. The purchaser, therefore, is entitled to the profits of the property from the date of sale.'

Section 65 reads:

'Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute'.

Thus as the auction-purchaser is entitled to the rents and profits accruing from the date of sale, and as the crop now harvested was standing on the land when he was ordered to be put in possession in execution of a decree, it is the auction-purchaser who is entitled to the possession of the land and the value of the crop since deposited in the court and not the person who raised the crop. The property vested in him and he became the owner thereof from the date of sale and is entitled to all the profits thereof from 4-4-1968. The lower Appellate Court committed an error of law in holding otherwise. The lower appellate Court referring to the following passage in S.M. Jakati v. S.M.Borkar, : [1959]1SCR1384 .

'The question which assumes importance in an auction sale of this kind therefore is what did the court intend to sell and did sell and what did the auction-purchaser purport to buy and what did he pay for.............. The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. '

came to the conclusion that as the present standing crop was not put to sale, the decree-holder was not entitled to realise the same. In my view, that is not the correct approach. It is not the case of the appellant that the present crop was standing on the land on 4-4-68 when it was brought to sale. Hence the question as to what was brought to sale was merely the land or also the standing crop thereon does not fall for consideration in this case. Admittedly only the land was brought to sale on 4-4-68. If the virtue of such a sale the appellant became entitled to the land and in view of the provisions referred to above, the ownership stood transferred to him on that date and as a result the legal incidents of such transfer clothe him with a right to realise rents and profits, he would be entitled to the crops raised on the land subsequent to such vesting. The present crop as already noted, was admittedly raised subsequent to such a sale. Hence the decision of the Supreme Court in : [1959]1SCR1384 does not stand in the way of allowing the appellants to realise the value of such crop standing on the land purchased by him on the date of delivery of possession. As already observed, I express no opinion on the question whether the appellant would also be entitled to the crops standing on the land on the date of sale for the simple reason that, the question does not arise directly for consideration in this case.

7. In view of the above discussions, this appeal succeeds and it is accordingly allowed but in the circumstances of the case, there will be no order as to costs. No leave.

8. Appeal allowed.


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