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Varkey Joseph Pothanikatt Vs. the Board of Revenue, Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 104 of 1975
Judge
Reported inAIR1978Ker149
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 97 and 99
AppellantVarkey Joseph Pothanikatt
RespondentThe Board of Revenue, Trivandrum and ors.
Appellant Advocate Varghese Kalliatu, Adv.
Respondent Advocate Govt. Pleader,; K. George Varghese,; Thomas V. Jacob
DispositionAppeal allowed
Cases ReferredRagho Prasad v. Pratap Narain Agarwal
Excerpt:
.....is not bound to have recourse to the second remedy. we are also unable to agree with the learned judge who noted the provisions of rule 99 of order xxi ignoring that the claim had to be in good faith or bona fide. it will include the case of a person who claims to be in possession in his own right and independently of the judgment-debtor but whose claim is on the face of it unacceptable and cannot be said to be made in good faith. such a bar, it seems to me, cannot be spelled out either from rule 35, or rule 97. where, however, resistance is offered or obstruction is made by a judgment-debtor on a ground which appears to necessitate investigation, the proceedings will be under rule 97. so also, where resistanceor obstruction proceeds from a person claiming to be in possession..........ext. p-6 and holding chat the writ petitioner was entitled only to symbolical delivery.2. the learned judge after noticing the facts and discussing the position found that respondents 3 to 8 were squatters on the property and they were claiming in their own right, and therefore, having regard to the provision of order xxi rule 99 of the civil p. c. which provides for delivery of possession after removal of obstruction, the purchaser was not entitled to get actual possession of the property. section 41 of the travancore-cochin revenue recovery act which is the relevant provisions reads:'where notwithstanding such publication, any lawful purchaser of land may be resisted and prevented from obtaining possession of his purchased land, the collector, on application and production of the.....
Judgment:

Gopalan Nambiyar, C.J.

1. Theappeal is against the judgment of a learned Judge who dismissed the writ petition to quash Ext. P-7 order of the Board of Revenue. The writ petitioner was a purchaser in revenue sale of an extent of 44 cents of land which was attached on 24-3-1939. The property was under Government management from15-12-1940. The sale was on 12-7-1946 and was confirmed on 16-11-1946. On16-11-1948 there was a publication declaring the purchaser to be the owner of the property. The sale certificate wasissued on 29-3-1952 and registered on 23-5-1952. Symbolical delivery was effected on 23-12-1952 on the ground that respondents 3 to 8 in the writ petition were squatters on the property and therefore actual possession could not be given to him. On application being made to the Collector, he, by Ext. P-l proceedings dated 21-7-1064 directed to put the purchaser in possession. That again resulted in Ext. P-4 order granting only symbolical delivery. O. P. No. 467 of 1967 was moved in this Court against that order which resulted in Ext. P-5 judgment dated 13-11-1968 by one of us (myself) holding that Ext. P-4 order was unhelpful, and was a non-speaking order, and directing investigation and enquiry into the question as to why the purchaser was not entitled to actual possession. In pursuance of this judgment the Tahsildar passed Ext. P-6 order dated 14-11-1971 holding that the purchaser was entitled to actual possession. That order was carried up in revision to the Board of Revenue which resulted in the impugned order Ext. P-7 reversing and setting aside Ext. P-6 and holding Chat the writ petitioner was entitled only to symbolical delivery.

2. The learned Judge after noticing the facts and discussing the position found that respondents 3 to 8 were squatters on the property and they were claiming in their own right, and therefore, having regard to the provision of Order XXI Rule 99 of the Civil P. C. which provides for delivery of possession after removal of obstruction, the purchaser was not entitled to get actual possession of the property. Section 41 of the Travancore-Cochin Revenue Recovery Act which is the relevant provisions reads:

'Where notwithstanding such publication, any lawful purchaser of land may be resisted and prevented from obtaining possession of his purchased land, the Collector, on application and production of the certificate of sale provided for by S. 39, shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the purchased land had been decreed to the purchaser by a decision of a civil court.

For purposes of this section the Collector may exercise all the powers of a Civil Court under the Civil P. C. for the time being in force.'

It would be noticed that the deeming,--so to say--of the proceedings to be adecree by decision of a civil court is only for the purpose of issuing process for putting the purchaser in possession. It is for this purpose that the Collector has to exercise all the powers of a civil court under the Civil P. C. We shall assume, without finally deciding, that this provision is sufficient to attract Order XXI Rules 97 and 99 of the Civil P. C. Even then we find it difficult to sustain the order of the learned Judge. Order XXI Rule 97 allows a right for the removal of obstruction or resistance against any person in order to obtain possession of the property. Rule 98 deals with the applications against persons who offer resistance or obstruction on behalf of the judgment-debtor or acting at his instigation. We may leave out this provision which has no application. We then come to Rule 99 which reads:

'99. Resistance or obstruction by bona fide claimant.--Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than those mentioned in R. 98) claiming in the good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.' It is of the essence of this provision that the resistance or obstruction must have been occasioned by a person other than the judgment-debtor and that such persons should claim in good faith to be in possession of the property on his own account or on account of someone other than the judgment-debtor. With these ingredients or requirements of the rule, we should couple the absence of any finding in Ext. P-7, of a claim in good faith on the part of respondents 3 to 8. Indeed we find it difficult to posit good faith on their behalf especially in view of the facts noticed in Exts. P-6 and P-7 orders. In Ext. P-6 order it is stated: 'It is therefore clear that the property was in the effective management and possession of Government all these years without any occupants on the site. It was put to sale while it was under sirkar management. Hence the auction was made of a property free of any occupation.'

This finding of the Tahsildar was not in any way interfered with or set aside or differed from in Ext. P-7 order of the Board of Revenue. Having regard to 'the accepted fact that the property wasunder Government management and possession, it would be a sad reflection on the said management, to lightly presume that the Government permitted, or connived at encroachers roaming over the property. Without any material and data we would not be justified in coming to such conclusion. We are therefore of the opinion that the Board of Revenue was wrong in passing Ext. P-7 order without adverting to these relevant and material aspects of the provisions that' we have noticed.

3. We may now refer to certain decisions in regard to the provisions of the Civil P. C. which were noticed by the learned Judge, and distinguished. One of these decisions on which considerable reliance was placed for the writ petitioner was the judgment of Sulaiman J. of the Allahabad High Court (as he then was) in Sobha Ram v. Tursi Ram (AIR 1924 All 495). The decision is noticed in para 4 of the learned Judge's judgment and there occurs the following quotation from the said judgment:

'There can be no doubt that after an auction sale has taken place and it has been confirmed, the property vests in the auction-purchaser. The auction-purchaser can obtain delivery of possession against his judgment-debtor. For this, remedy is provided under the Code. If, however, there is some person other than the judgment-debtor, who is not his representative and not holding the property on his behalf and who resists or obstructs his possession, there are two remedies open to the auction-purchaser, namely, either to bring a regular suit for possession against that person, or to have recourse to a summary remedy by way of an application as provided in Order 21, Rule 97. It is well settled that the auction-purchaser is not bound to have recourse to the second remedy. It is open to him to do so if he wants to save time. Of course, if he does and fails, then this remedy, to bring a regular suit is curtailed and the period of time is prescribed by Article 11-A of the Limitation Act. It is, therefore, clear that unless the defendants can satisfy us that there is an order which falls under Rule 99 of Order 21, which operates as a bar to the present claim, the regular suit certainly is not barred.'

The principles stated by the learned Judge correctly expound the law, made, no doubt in considering whether the remedy of a suit was available and the period of limitation for the same. Ad-verting to the decision of Sulaiman J. the learned Judge however observed:

'With respect, I am constrained to say that it is an unhappy sentence. Technically speaking, the learned Judge is right in the above statement, since Rule 97 states only resistance or obstruction by any person. It does not say whether it should 'be by a judgment-debtor or some other person acting at his instigation or on his behalf.'

We cannot endorse the learned Judge's comment on the judgment of Sulaiman J. We are also unable to agree with the learned Judge who noted the provisions of Rule 99 of Order XXI ignoring that the claim had to be in good faith or bona fide. Another decision cited to the learned Judge and noticed by him was the decision in Ragho Prasad v. Pratap Narain Agarwal (1969 All LJ 929). That is referred to in para 5 of the learned Judge's judgment. The following quotation from the said judgment will be found in that para: (at p. 934)

'An examination of the provisions of Rules 35, 97, 98 and 99 of Order 21 appears to me to indicate the following scheme of execution. Under Rule 35, the executing court directs delivery of possession of the property to the decree-holder, or to his agent in that behalf, and, if necessary, it will direct the delivery of possession by removal of the judgment-debtor or any other person bound by the decree who refuses to vacate the property. A 'person bound by the decree' includes a person claiming through the judgment-debtor. The provision for removal of the person bound by the decree who does not vacate takes into account a situation where resistance to possession is offered or obstruction is made by the judgment-debtor or any other person bound by the decree on a ground which is patently without substance. It will include the case of a person who claims to be in possession in his own right and independently of the judgment-debtor but whose claim is on the face of it unacceptable and cannot be said to be made in good faith. In such a case, there is, in my opinion, no bar to the issue of a fresh warrant for possession. Such a bar, it seems to me, cannot be spelled out either from Rule 35, or Rule 97. Where, however, resistance is offered or obstruction is made by a judgment-debtor on a ground which appears to necessitate investigation, the proceedings will be under Rule 97. So also, where resistanceor obstruction proceeds from a person claiming to be in possession in his own right and independently of the judgment-debtor and whose claim cannot be rejected as not being made in good faith without investigation, the decree-holder must proceed under Rule 97. While an ex facie consideration of the ground for resistance or obstruction can be had under Rule 35, a ground or claim which cannot be disposed of as obviously without foundation needs to be investigated under Rule 97.'

The learned Judge commented on the judgment by observing:

'Here again the question was whether the order under appeal was one passed under Rule 95 of Order XXI C. P. C. When the court held that it was so, there was an end of the matter. The observations made regarding the scope of Rules 35, 97, 98 and 99 in Order XXI C. P. C. were in the nature of obiter. With great respect, I am unable to agree with the two sentences in the above passage on which the petitioner's counsel relied.'

Here again we are unable to agree with the learned Judge's comment or understanding of the judgment of Pathak J. We think the said judgment has correctly expounded the law and we are in agreement with it. In the case on hand there is no finding in Ext. P-7 that the occupation of the petitioner was bona fide; and the facts negative bona fides.

4. Counsel for respondents 3 to 8 raised the contention that the Tahsildar who passed Ext. P-6 order had no jurisdiction to pass the same, and that he had not been empowered by the Government to perform the functions of the Collector either by name or by virtue of his office. The objection in regard to the jurisdiction of the Tahsildar was not raised at any stage. The Tahsildar's order was carried up in revision to the Board of Revenue. There was no occasion for respondents, perhaps, to raise or press the plea of want of jurisdiction of the Tahsildar as they succeeded in the revision on the merits. Before the learned single Judge again who heard the writ petition against Ext. P-7 order, there was, presumably, no ground to urge the plea of want of jurisdiction on the part of the Tahsildar, as the learned Judge dismissed the writ petition on the merits. Before us the plea was urged. The learned Government Pleader stated that he could not positively state whether the Tahsildar had jurisdiction; but that, he gathered that there is no spe-cific empowerment of the Tahsildar.Even assuming, without deciding, that the Tahsildar had no jurisdiction we do not think on this ground we should decline to interfere with Ext. P-7 order of the Board of Revenue. We think the interests of justice would be advanced by quashing Ext. P-7 order to enable the purchaser to realise the fruits of his purchase rather than maintain the order and continue the illegal occupation of the Respondents.

We allow the appeal and set aside the judgment of the learned Judge. In the result we allow O. P. No. 4716 of 1972 and direct that Ext. P-7 order of the Board of Revenue will stand quashed. There will be no order as to costs.


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