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B.K. Pradhan Vs. Kalawati Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 158 of 1966
Judge
Reported inAIR1968MP175; 1968MPLJ180
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 20 and 29; Displaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 121; Code of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 151 - Order 6, Rule 17
AppellantB.K. Pradhan
RespondentKalawati Devi
Appellant AdvocateS.C. Dubey, Adv.
Respondent AdvocateR.S. Dabir, Adv.
DispositionAppeal dismissed
Cases ReferredBishan Paul v. Mothu Ram
Excerpt:
- - in the absence of an express bar in section 29, a decree for ejectment can be passed against the tenant as soon as his right under section 29 is exhausted and it does not matter that the suit was instituted earlier, provided all other requirements of the law are satisfied. 10. this brings me to the contention raised for the appellant that the sale-certificate itself is bad and inoperative inasmuch as it was issued under appendix xxii instead of appendix xxiii......1954 (act no. xl of 1954) (hereinafter called 'the act') the house was sold to one bhagwandas. a sale-certificate was issued to the said purchaser on 8 december 1961. that certificate of sale declared the said bhagwandas to be the purchaser of the said property with effect from 15th day of june 1957. bhagwandas in his turn sold the house to the plaintiff by a registered deed of sale dated 5 march 1962. the plaintiff served a notice to quit dated 14 march 1963 on the appellant terminating the tenancy on the expiry of april 1963 the month of tenancy. she brought the suit on 1 may 1963. the appellant resisted the suit on various grounds.3. the trial judge held that the plaintiff is the owner of the suit house; that she bona fide requires it for her own need and that of her family; that.....
Judgment:

Shiv Dayal, J.

1. This second appeal arises from a suit for ejectment of a tenant. The trial Court passed a decree in favour of the plaintiff. The same has been affirmed by the first appeal Court.

2. The appellant is in occupation of a portion of House No. 41 in Napier Town, Jabalpur. In pursuance of the powers conferred under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 (Act No. XL of 1954) (hereinafter called 'the Act') the house was sold to one Bhagwandas. A sale-certificate was issued to the said purchaser on 8 December 1961. That certificate of sale declared the said Bhagwandas to be the purchaser of the said property with effect from 15th day of June 1957. Bhagwandas in his turn sold the house to the plaintiff by a registered deed of sale dated 5 March 1962. The plaintiff served a notice to quit dated 14 March 1963 on the appellant terminating the tenancy on the expiry of April 1963 the month of tenancy. She brought the suit on 1 May 1963. The appellant resisted the suit on various grounds.

3. The trial Judge held that the plaintiff is the owner of the suit house; that she bona fide requires it for her own need and that of her family; that she has no otherreasonably suitable accommodation of her own in the city of Jabalpur; that a sale certificate has been issued to her: that the tenancy was validly and legally determined and that the suit is not premature within the meaning of Section 29 of the Act. In the result a decree for ejectment was passed. The first appeal Court has agreed with the trial Court in those findings.

4. It is contended by the learned counsel for the appellant that the suit was premature, inasmuch as the title in the suit property was transferred to Bhagwandas on 8 December 1961 and no suit could be instituted within two years of that date. It is argued by the learned counsel that the date of issuance of the sale certificate is itself the date on which the title is acquired by the purchaser but not earlier. And it is then urged that by virtue of Section 29 of the Act the tenant is not liable to be ejected within two years of the date of issuance of the sale certificate. Reliance is placed on Bombay Salt and Chemical Industries v. Johnson, AIR 1958 SC 289, Motandas v. Gopal das, AIR 1962 Madh Pra 307 and Deptylal, Lessee, Coronation Talkies Ootacamund v. Collector of Nilgiris, AIR 1959 Mad 460.

5. Rule 121 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 prescribes a period of two years in respect of the protection given to the tenant under Section 29 of the Act. The question is what is the starting point for the computation of the said period?

6. In order to determine the date on which ownership passed to the purchaser it must be borne in mind that that question is separate and distinct from the question whether the ownership has been acquired or not. To put it differently, whether the purchaser has actually become the owner of the property or not, is one: the question on what date he must be deemed to have become such owner, is another. The first question presents no difficulty whatever. Where no sale certificate has been granted no transfer comes into existence. So long as a sale certificate is not granted the purchaser cannot claim to have become the owner of the property. This was authoritatively laid down in AIR 1958 SC 289. The ratio decidendi of that case is that so long as a sale certificate is not issued to the highest bidder, there is no transfer of the property. Now it must at once be stated that in that case, the Supreme Court did not deal with further question as to the date on which the purchaser must be deemed to have become the owner of the property. However, the following observations made by their Lordships provide useful guidance:

'Whether there is a transfer or not depends on the conditions of the auction and these have to be examined to find out when a transfer of the property auctioned takes place ..... There may be a sale byauction where the sale is not complete till, for example, a document is executed.'

The expression 'for example' is significant. With reference to Section 20 of the Act, their Lordships pointed out that the section, furthermore, states that the transfer under it would be subject to the rules made under the Act. This means that merely because a person is the highest bidder at an auction, he cannot claim that ownership of the property has vested in him. Their Lordships referred to Clause (15) of Rule 90 which provides thus:

'When the purchase price has been realised in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in Appendices XXII and XXIII, as the case may be ..... '

In both these appendices there appear the following words:

'This is to certify that .....(nameof the purchaser) ..... having giventhe highest bid ..... has been declaredthe purchaser of the said property with effect from ..... the day of195.....'

7. If as a deduction from the decision of the Supreme Court it has to be said that a certificate of sale is a sine qua non for passing of title to the purchaser, I would add, with greatest respect, that the declaration, if any, in the sale certificate as to the date with effect from which the purchaser is declared to be so, must be held to be the date on which the property passed to the purchaser. In other words although the purchaser acquires title when a sale certificate is issued to him, yet the conferral of ownership relates back to the date, if any, specified in the certificate of sale. This was the view I took in Abdul Hafiz Khan v. Kalumal, Second Appeal No. 58 of 1963 D/-20-11-1963 (Madh. Pra.) where it was held that on the issuance of a certificate of sale either in the form of Appendix XXII or XXIII (although not before that), the purchaser becomes the purchaser of the property with retrospective effect from the date specified in the certificate of sale.

8. Shri S.C. Dube learned counsel for the appellant strongly relying on AIR 1962 Madh Pra 307 endeavoured to persuade me to refer the case to a larger Bench so that the conflict may be resolved. But this has become entirely unnecessary because of the recent decision of the Supreme Court in Bishan Paul v. Mothu Ram, AIR 1965 SC 1994 where the question has been set at rest.

9. Even if it is held that under Section 29 of the Act the tenant has the right to remain in possession of property until two years expire from the date on which a certificate of sale is issued to the purchaser, this appeal must be dismissed because that condition too has been fulfilled in the present case. Certificate of sale was issued on 8th December 1961. The appellant is still in possession. He has continued to remain in possession for a further period of two and half years, over and above the period to which he was entitled on his own showing. I see no substance in the argument advanced for the appellant that merely because the suit was instituted before the expiry of two years computed from the date of the sale certificate, no decree could be passed in the suit on the simple ground that it was premature. Section 29 does not bar institution of a suit for ejectment; the only right it gives to the tenant is that he is not 'liable to be ejected' from the property during the prescribed period. The language of Section 29 of the Act is in contrast to such provisions as are found in certain enactments where the institution of the suit itself is barred. In the absence of an express bar in Section 29, a decree for ejectment can be passed against the tenant as soon as his right under Section 29 is exhausted and it does not matter that the suit was instituted earlier, provided all other requirements of the law are satisfied. Ordinarily the decree in a suit should accord with the rights of the parties as they stood on the date of its commencement, but in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of the events after the institution of the suit and to decide the case according to the circumstances as they stand at the time the decree is made.

10. This brings me to the contention raised for the appellant that the sale-certificate itself is bad and inoperative inasmuch as it was issued under Appendix XXII instead of Appendix XXIII. This contention must at once be rejected as it was not raised in the written statement. An application for amendment was made in the lower appellate Court. In my opinion it cannot be allowed, On a comparison of Appendix XXII and Appendix XXIII the only significant difference is that in the former the following words (which appear in the latter) are omitted: 'The terms and conditions on which the site will be held are specified in the lease-deed appended thereto.' That difference is immaterial so far as the tenant is concerned. Thus that question being not in controversy between the parties, the application for amendment of the written statement was rightly rejected by the learned Additional District Judge.

11. The appeal is dismissed with costs.


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