Varadaraja Iyengar, J.
1. These two appeals arise from the judgment and decree in O. S. 69 of 1952 on the file of the District Court of Quilon and are filed respectively by the defendants 1 and 3 in the suit.
2. The disputed plot is 20 cents out of a larger area of 75 cents covered by a single survey number and is scheduled as item 1 to the plaint. The whole property originally belonged to the 3rd defendant Krishnan Chettiar. Kochukunju examined in the case as D. W. 1 had a charge over this and other properties and in enforcement thereof he filed suit & obtained decree in O. S. 82 of 1111 of the Karuna-gappalli Munsiff's Court against 3rd defendant and others and in due course of execution purchased the property himself on 14-10-1119.
He subsequently transferred his sale sannad rights to the plaintiff Meenakshi under Ext. A. dated 1-5-1122 and she thereafter on 2-2-1123 obtained delivery of the property under Ext. B delivery kychit by usual process in execution. Meanwhile the 3rd defendant had taken appeal before the District Court of Quilon as A. S. 318 of 1114 against the judgment and decree in O. S. 82 of 1111 but unsuccessfully.
As, however, the appeal was filed in forma pan-peris the State 1st defendant here, attached and brought to sale, the 20 cents plot forming item 1 of the plaint for realisation of court-fees due and themselves purchased it on 5-11-1118 and obtained delivery from the 3rd defendant later on 19-6-1119. There is controversy in this case as to whether the plaintiff who only subsequently purchased, obtained real delivery against the State and its kuthakapattom lessee, the 2nd defendant, on 2-2-1123 under Ext. B.
Anyhow according to the plaintiff, she was disturbed in her enjoyment of plaint item 1 by the defendants 2 and 3 and lost possession completely on account of their trespass. She laid this suit accordingly on 27-3-1952 for declaration of title to and recovery of item I from the defendants 2 and 3 with mesne profits for the past three years and future.
Item 2 is a small shed which the plaintiff says, had been put up in item 1 by the defendants 2 and 3 subsequent to Ext. B delivery in her favour and should be directed to be removed. The suit was contested by the defendants 1 and 3 though by separate written statements on the footing that the sale of item 1 in execution of the court-fees decree had passed good and unimpeachable title to the 1st defendant and further that its possession obtained in execution and maintained through their kutha-kapattom tenant had remained undisturbed throughout.
The question was also raised that the plaintiff's remedy, if at all, lay only in execution and not by separate suit. The 3rd defendant had a separate plea of benami to the effect that Ext. A transfer by D. W. 1 of his sale sannad rights over item 1 whole property had nothing to do with the plaintiff really but was got at by the 3rd defendant and for his own exclusive benefit and similarly the kuithakapattom taken by the 2nd defendant of item 1 was intended for his use only.
3. The court below found that the execution sale in favour of the State of item 1 was vitiated by lis pendens and therefore subservient only to the rights which passed on to D. W. 1 under his court purchase, though later, in execution of the same decree O. S. 82 of 1111. The court below further found that under his delivery proceedings the plaintiff obtained effective delivery as against the 3rd defendant and also the 1st defendant State and its kuthakapattom tenant the 2nd defendant.
The contention of the State that the plaintiff's remedy lay in execution of the decree in O. S. 82 and not by way of fresh suit as here, was also specifically overruled. And as regards the 3rd defendant's contentions the court below found that the consideration for Ext. A had passed solely from the plaintiff and the plea of benami set up by him was without any basis and was unsubstantiated.
In the result, the court passed decree as prayed for by the plaintiff, except in the matter of past mesne profits which it allowed only at reduced rate and of item 2 which it refused to disturb. Hence the appeals by the 1st defendant-State In A. Section 93 of 1956 and by the 3rd defendant in A. Section 190 of 1956. Against the disallowance of relief in regard to item 2 the plaintiff has filed cross-objections in A. S. No. 190 of 1956. A. S. No. 93 of 1956.
4. Learned Government Pleader appearing for the appellant State has not pursued the question raised in the appeal memorandum that the State's title to item 1 by virtue of its court purchase was superior to that of the plaintiff. Indeed he could not get over the doctrine of lis pendens as applied to the case. But he urged that the suit as laid for recovery of item 1 was not maintainable under Section 47, C. P. C. It is no doubt true that the Travancore High Court, following some of the High Courts in India had always been taking the view that
'(i) The proceedings in execution could not be taken to be completed till delivery of possession of the property sold in execution is effectively made.
(ii) The decree-holder is not divested of his character as such by reason of his becoming the auction-purchaser himself.
(iii) All questions between him and the judgment-debtor or his representative relating to the execution of the decree even after the date of the auction-purchase by the decree-holder will fall within the purview of Section 47, C. P. C.
(iv) Questions relating to the delivery of possession between decree-holder-auction-purchaser and the judgment-debtor or his representative will also fall under the above section; but if such questions arise between third parties and the decree-holder-auction-purchaser -- Section 47 will not apply'. But all the High Courts, inclusive of the Travancore High Court, are agreed that once delivery has been taken in execution of the decree even if it be only symbolical as referred to in Order XXI, Rule 35 (2) and K. 36, a suit for recovery based on title will be maintainable at the instance of the decree-holder-auction-purchaser even against the judgment-debtor and his 'representatives' which term will include lis pendens purchasers in the position of the 1st defendant State herein.
The symbolical possession will be treated as actual possession where the suit is against the judgment-debtor or his representatives. The position is much more easy in this case, when actual delivery in execution is claimed to have been obtained by the plaintiff. And it is also likely because the 3rd defendant, beneficiary under the kuthakapattom granted by 1st defendant State, must have been in physical possession at time of the process issued by the plaintiff for delivery in execution.
The Court below has found this question in favour of the plaintiff and we find no reason to differ from its view. It follows therefore that there is no substance in the point raised by the State in this appeal that the suit as framed was not maintainable.
A. S. No. 190 of 1956.
5. The 3rd defendant has raised in this appeal the question as to the benami nature of the assignment in favour of the plaintiff under Ext. A. Now, Ext. A is for a consideration of Rs. 882 made up of three recitals.
(i) Rs. 250 reserved to be paid to the prior mortgagee auction-purchaser as balance due under his mortgage.
(ii) Rs. 500 cash payment on date of sale, and (iii) Rs. 132 paid previously.
According to the 3rd defendant's written statement no portion of this consideration had been advanced by the plaintiff and it was the 3rd defendant that paid the whole. The 3rd defendant further sought to say that D. W. 1 the decree-holder-auction-purchaser was showing in fact special consideration to the 3rd defendant, where he gave up his right for less than his dues.
The plaintiff, his close relative at that lent her name as vendee under Ext. A, it was urged, only just to accommodate the 3rd defendant. The 3rd defendant led evidence by examining D. W. 1 and also himself as D. W. 3. D. W, 1 has tried his best to help the 3rd defendant but it would appear, rather over-reached himself when he made the assertion without any foundation, that the plaintiff was the daughter of the 3rd defendant's uncle.
He was however willing to admit that the cash consideration of Rs. 500/- was advanced by the plaintiff's husband through the third defendant. Learned Counsel for the 3rd defendant strenuously contended that the plaintiffs ignorance of the precise steps which led to her purchase under Ext. A showed she had no real interest but the plaintiff has herself sworn to the fact that her husband was instrumental in putting it through.
It might be that the 3rd defendant played active part in getting D. W. 1 to pass on title to the plaintiff but there is absolutely no basis on the evidence to hold that the plaintiff was only a mere benamidar for the 3rd defendant and the proceedings taken in execution for delivery were all bogus. On the whole no material has been placed before us for differing from the view taken by the court below on this matter.
We hold therefore that Ext. A sale was not benami for 3rd defendant but was intended to find did convey real interest in favour of the plaintiff. It follows there is no substance in this appeal. It is therefore dismissed with costs.
6. Taking the objection memorandum filed by the plaintiff, we think that the learned Judge below was wrong in refusing the relief sought by the plaintiff as - regards item 2 which appears to be a very insignificant and later construction. All that the plaintiff wanted was to have it removed. We therefore direct that the 3rd defendant will remove item 2 building within two months from this date and further that if he fails to do so, it will be open to the plaintiff either to have it removed through court or to appropriate it to herself on payment of Rs. 5 to the 3rd defendant towards its price. The decree to be prepared in this court will incorporate this direction. We thus allow the objection memorandum filed by the plaintiff but without costs.