L.N. Chhangani, J.
1. This is a second appeal by the decree-holder-defendants against the appellate judgment and decree of the Civil and Additional Sessions Judge, Jalore, dated 5-5-1961 affirming the decree of Munsif, Jalore, dated 30-3-1960, decreeing the suit of the plaintiff-respondents nos. 1 to 8 under Order 21 Rule 63, Civil Procedure Code.
2. The decree-holder-appellants obtained a money decree against the defendant-respondent No. 9 and in execution of that decree they obtained an attachment of the suit house situate in the town of Ahore. The plaintiff-respondents Nos. 1 to 8 preferred an objection under Order 21 Rule 58. Civil Procedure Code, on the ground that they were owners of the suit house and that Magga had nothing to do with it. This objection was dismissed by the execution court on 30th September, 1964. Thereupon, the plaintiff-respondents filed a suit in accordance with Order 21 Rule 63, Civil Procedure Code, on 22-12-54 in the court of Civil Judge, Jalore which was subsequently transferred to the court of Munsif, Jalore, on 4-5-1955.
The plaintiff-respondents' case was that they had purchased the suit house at a public auction from Thikana Ahore for a sum of Rs. 751 and thereafter they had obtained a patta from the Thikana Ahore on 19-4-1950 The plaintiffs also contended that the house was leased out to Magga who was the tenant and had no proprietary right or interest in it. They accordingly claimed a declaration against the defendants to the effect that the house belonged to them and that Magga had no right or interest in it. They also prayed for an injunction restraining the decree-holder-defendants from proceeding with the execution proceedings in respect of the suit property. In the suit they impleaded both decree-holders and the judgment-debtor as the defendants.
3. All the defendants resisted the suit. They contended that the plaintiffs were not the owners of the suit house and their contention that they had purchased the same from Thikana Ahore for a sum of Rs. 751 was wrong. They also contended that the Thikana Ahore had no right to auction the suit house nor to give a patta with respect to it and further that the patta produced by the plaintiffs being unregistered was not admissible in evidence.
The defendants also contended that the plaintiffs could not acquire title with respect to the suit house as the sale of immovable property was not in accordance with Section 54 of the Transfer of Property Act, and that after the Constitution had come into force the Thikana could not have sold immovable properly to anyone merely by means of a patta, and that if there was any such law or custom which permitted the Thikana to do so, then it was void being in contravention of Articles 13 and 14 of the Constitution. They pleaded that the house in question belonged to the judgment-debtor Magga and he was in possession.
4. On the pleadings of the parties, the trial court framed the following eight issues:
(1) If the suit premises belonged to the plaintiff and was in their possession?.
(2) If by virtue of the defendant No. 3 having adverse possession over the house in dispute, the defendant No. II was the owner of it? D. 3
(3) If the patta of the house in dispute produced by the plaintiffs, being unregistered was not admissible in evidence? D. 3
(4) If the defendant No. 3 lived in the plaintiffs' house in dispute in the capacity of a tenant?
(5) If the rent note produced by the plaintiffs, being unregistered was inadmissible in evidence?
(6) If the Ahore Thikana had no legal right in the year 1950 to transfer the property in dispute by issuing a patta? D. 8
(7) If the rent deed produced by the plaintiffs was illegal? D
(8) What will be the relief?
The trial court first took up issues Nos. 3, 5, and 6 and decided against the defendants by its order dated 14-9-55 and held that even an unregistered patta was admissible in evidence and that the Thikana Ahore had legal right in the year 1960 to transfer the property in dispute by issuing a patta. The decree-holder-appellants then moved an application under Article 228 of the Constitution of India in this Court for the withdrawal of the suit stating that the case involved substantial questions of law as to the Interpretation of the Constitution, determination of which was necessary for the decision of the suit and praying for the disposal of the case by the High Court for the determination of the question of law. The application was, however, dismissed by this Court on 27th March, 1959. Thereafter, the trial court decreed the plaintiffs' suit.
The trial court found that the plaintiffs were owners of the suit land by virtue of patta Ex. 4 and were in possession of it through their tenant Magga as evidenced by the rent-notes Ex. 1 and Ex 4 the execution of which was held proved The trial Court also held proved that there was a custom whereby the Thikana auctioned out any 'Ger-patta-sud' land after allotting suitable land in exchange of it to the occupier there of and the purchaser paying compensation to the occupier for the malba. It further held that in the present case it was established that the Thikana Ahore had allotted another land to Magga and that the plaintiffs had paid compensation to Magga for the malba. The trial court also held that Magga had no adverse possession of the suit property. The trial court also held that Magga was estopped from challenging the title to the suit house.
5. Against the decree of the trial court the decree-holder-defendants filed an appeal in the court of Senior Civil Judge, Jalore. The appellate court dismissed the appellants' appeal. It held that as the Transfer of Property Act was not in force at the time of the grant of the patta by the Thikana to the plaintiff-respondents there was a valid oral sale in favour of the plaintiff-respondents. The appellate court did not record any specific finding as to the validity of the custom under which the Thikana could sell the land by issuing patta. The appellate court also held proved the rent-notes and receipt executed by Magga. In the result, the appellate Court dismissed the appeal. The decree-holder-appellants have filed the present second appeal.
6. I have heard Mr. Srikishan Mal Lodha for the appellants and Mr. Sumer Chand Bhandari for the respondents. The facts which have been concurrently found by the two courts below and which are indeed beyond controversy may be stated at the outset. The land on which the house under attachment has been built was the land of Thikana Ahore. Magga, the judgment-debtor occupied the land as the licensee of the Thikana. It appears that the Thikana Ahore intending to sell the site allotted some other land to Magga and thereafter auctioned the land and accepted the highest bid of the plaintiff-respondents.
After the auction the defendant-respondent Magga executed a writing in the nature of the rent-note Ex. 1 in favour of the respondents, on Besakh Badi 2 samvat 2006 corresponding to 19-4-1950. In this document Magga admitted that he had surrendered the land to the Thikana and that the land had been purchased by the plaintiff-respondents and agreed to vacate the house upto samvat 2007 Kati Sudi 15 and in the meanwhile, to pay rent at the rate of Re. 1 per month. This rent note was executed on a plain paper as stamp paper was not avail able. Even prior to the execution of this rent note Magga had accepted Rs. 30 from the plaintiff-respondents as compensation for the hut he had built over the Thikana site and executed a receipt Ex. 2. Subsequently, on Jeth Badi 7 samvat 2006 corresponding to 8-5-1950 Magga executed another rent note on a stamp paper Ex. 4. Thikana, it may be mentioned issued patta in favour of the plaintiff-respondents on samvai 2000 Baisakh Badi 2, that is, 19-4-1950.
7. It is thus clear that originally Magga had possession over the site but subsequently the land was surrendered by him to the Thikana and the Thikana sold the land to the plaintiff-respondent and issued the patta. Now, the finding that Magga had surrendered the land and executed receipt and rent-notes in favour of the plaintiff-respondents are purely findings of fact and I have no hesitation in accepting them as final in this second appeal. Besides, there is sufficient evidence in support of the finding.
The learned counsel for the appellant could not successfully challenge these findings. He, however, challenged the finding of the courts below that there was a valid title in favour of the plaintiff-respondents. II was pointed out by him that the trial court committed an error in holding that under a valid custom the Thikana could have transferred the land by issuing a patta and that the appellate court also went wrong in holding that the Transfer of Property Act having not been in force the sale by the Thikana in favour of the plaintiff-respondents was valid being an oral sale. He pointed out that the Transfer of Property Act had been in force in the former State of Jodhpur at the time when the patta was issued by the Thikana.
8. The learned counsel for the respondents did not join any serious controversy onthis contention. He admitted that the Transfer of Property Act was in force and he made no efforts to support his case by reference to any custom. In the circumstances, there is no escape from the conclusion that there was no valid sale in favour of the plaintiff-respondents. The sale of immovable property of a value exceeding Rs. 100 can be effected only by means of a registered sale deed. Thus even though the plaintiff-respondents paid Rs. 751 to the Thikana and obtained patta there was no valid sale in favour of the plaintiff-respondents in accordance with law.
However, the respondents' counsel contended that the decree in favour of the plaintiff-respondents is justified inasmuch as the plaintiff-respondents were in possession of the property through the judgment-debtor as their tenant and thus had interest in the property which could not be attached in execution of a decree against the judgment-debtor who was merely a tenant in respect of that property.
9. The appellants' counsel's contention, however, in this behalf is that in a suit under Order 21, Rule 63, Civil P.C. the plaintiff-respondents could not succeed merely on proving their possession and that it was obligatory for them to prove valid title in their favour. He pointed out that Order 21 Rule 63, Civil P.C. contemplated a suit to establish the right which the plaintiff claims to the property in dispute whereas, the preceding rules dealing with enquiry in claims proceedings, contemplate enquiry into possession and interest of the claimant.
In support of his contention, he relied upon some observations made in Masina Bavamma v. Yendru Papanna, AIR 1936 Mad 971, Mst. Aziz Jahan Begam v. Sardar Singh, AIR 1955 All 241 (FB) and Misri Lal Nayak v. Rameshwar Prasad, AIR 1961 Pat. 34 Opposing the contention, the learned counsel for the respondents relied upon Jawahar Mal v. Punjab National Bank, Ltd. Sargodha, AIR 1936 Lah 524 and the Bench decision of this Court in Poonamchand v. Motilal, AIR 1955 Raj 179. I propose to notice the cases relied upon by the counsel for the appellants.
10. In AIR 1936 Mad 971 the Munsif, who tried the suit, granted a decree in favour of the plaintiff releasing the property from attachment on the ground that the attachment having been made subsequent to defendant No. 1's adjudication in insolvency without the leave of the Insolvency Court, the attachment was invalid. He did not go into the question whether the plaintiff was entitled to the suit property or not.
In appeal, the learned Subordinate Judge reversed the said decision on the ground that even assuming that attachment was invalid still the plaintiff had to establish that the properly belonged to her and that the question of title ought to have been determined by the Munsif. He, therefore, remanded the suit for decision. In an appeal from the order of remand, it was contended on behalf of the plaintiff that it was not incumbent on the plaintiff to establish the title to the properly but it was enough to make out that the property was not liable to attachment. It was in repelling such a contention that an observation was made that the scope of the suit under Order 21 Rule 63, Civil P.C. is to declare the title of the property which is sought to be attached in execution proceedings. There are, however, observations in this case which go to show that a claimant plaintiff need not necessarily establish ownership or title. These observations are extracted below:--
'The language of Order 21 Rule 68 is clear and unambiguous. The party against whom the order is made under the previous rules is required to establish the right which he claims to the property in dispute. The words 'establish the right' mean that the right claimed in the suit must be declared. If the plaintiff is an unsuccessful claimant, he must establish that the property belongs to him or that he has some interest independent of the title of the judgment-debtor and therefore the property is not liable to be attached. If the plaintiff is the decree-holder he must establish that the property he seeks to attach is that of the judgment-debtor or the judgment-debtor has some interest therein which he is entitled to attach.'
The learned Judge also quoted with approval the following observations: from Nelluri Venkayya v. Raghavayya, AIR 1935 Mad 596.
'This Court had held in 1933 Mad 328 (6), that the terms of Order 21, Rule 63 are wide enough to include suit based upon title. The point to be observed is that the rule does not specifically say either that it is possession on the date of claim proceedings that should be established or that it is the title of the claimant that should be established. The words are 'the claimant may institute a suit to establish the right which he claims to the property in dispute'. In order to prove that he has a right to the properly in dispute, consideration of his title as well as of possession will be relevant. The two questions cannot be separated one from the other, for, in finding out who is in possession of the properly the question as to who has title to ii will be relevant because ordinarily possession will follow title.
This case is, therefore, no authority for the proposition that the plaintiff must establish complete and full ownership or title in order to succeed in a suit under Order 21 Rule 63, Civil P.C
11. In the Allahabad case reported in AIR 1955 All 241, the appellant had initially preferred objection under Order 21 Rule 58 to the attachment of the property on the ground that her husband had sold the property to her in lieu of her dower debt and that she was The owner in possession of the property and that her husband had no interest in the property, which could be attached or sold in execution of the money decree. This objection was rejected on 12-4-1932 After the rejection of the objection the property was sold in two lots and the decree-holder purchased the property on 22-11-1933 and obtained formal possession.
On 23-2-1944 the decree-holder auction purchaser filed a suit for possession of the property and mesne profits. The appellant resisted the suit and one of the issues was, whether the defence was barred under Order 21 Rule 63? It was argued inter alia on behalf of the appellant that the defence was not barred inasmuch as the order dismissing the appellant's objection determined the question of possession of the judgment-debtor on the date of the attachment and it did not debar the defendant from pleading her title on the basis of the sale deed.
It was submitted in this connection that the provisions of Order 21 Rules 60, 61 and 62 indicate that the court has to investigate not the question of title but the question of possession and that if the execution court finds that the objector is in possession of the property even though he may have no right to it and may be a mere trespasser, the objection must be allowed. On this basis it was argued that the finality should attach only to the question of possession and not to the question of title. This contention was overruled and it was observed that language of the various provisions of the Code do not indicate that investigation made by the execution court is necessarily confined merely to the question of possession. Malik C.J in support of this view referred to the following observations of Rankin C.J. of the Calcutta High Court made in Najimunnessa Bibi v. Nacharaddin Sardar, AIR 1924 Cal 744.
'That it was impossible to separate altogether the question of possession and of title The argument of learned counsel therefore that under Rule 63 the decision must be confined to the question who was in possession on the date of the objection and the order is conclusive only to this extent that if no suit is brought within one year the party against whom the order was made cannot claim that be was in possession of the properly but the question of title is not affected at all, does not appeal to me.'
No doubt, the learned Chief Justice made the further observations'
'If the order is against the objector and he has to file a suit under Order 21, Rule 63 he can only succeed in defeating the claim of the decree-holder to proceed against the property and have it sold in satisfaction of his decree by proving his own title to the property and by establishing that the judgment-debtor had no saleable interest in it.'
It is upon these observations that the learned counsel has laid great stress. These observations must be understood in the light of the facts of the case and I am unable to agree with the counsel for the appellants that the learned Chief Justice intended to lay down that the plaintiff must establish complete ownership of the property besides disproving the judgment debtor's title.
12. The decision in AIR 1961 Pat 34 does not give much assistance to the counsel for the appellants In that case in the execution of a mortgage decree the mortgaged house was sold and purchased by a stranger auction-purchaser but he did not obtain delivery of possession and the judgment-debtor continued in possession for a period of ten years. The plaintiff subsequently obtained a personal decree for the balance under Order 34, Rule 6, Civil P. C. and again sought to attach the house in execution.
An objection to attachment filed by the purchase, of the house was allowed, and the plaintiff filed a suit under Order 21 Rule 63, Civil P.C. The plaintiff's suit was dismissed. The matter came before a Division Bench in a Letters Patent Appeal. In the first instance, the learned Judges observed that there was no finding of the courts below that the judgment-debtors were in possession. They also observed that oven if the judgment-debtors were in possession that was not sufficient to justify the attachment of the property. It was in that context that it was observed that the possession of the judgment-debtor though material, was not conclusive The decision fully justified on the facts does not support the wide proposition canvassed by the counsel for the appellants.
13. In my opinion, the correct position of law has been enunciated in AIR 1936 Lah 524. In that case referring to the words 'the right which he claims to the property in dispute' Tek Chand J. sitting with Dalip Singh J. staled the law as follows:--
'Obviously these words do not mean that the plaintiff has to establish his ownership of the property in dispute. All that he is required to do is to establish 'the right which he claims to the property in dispute. It is clear that if the suit has been instituted by the decree-holder, against whom an order has been passed under Rule 60 releasing the properly from attachment, the right which he claims in the suit is the right to have the properly attached in execution of the decree against his judgment-debtor If, on the other hand, the plaintiff is the objector, who has been unsuccessful in the objection proceedings before the executing court, the right which he claims in the suit is the right to have the properly in dispute released from attachment, it not being the property of the judgment-debtor. It will be seen in either case that it is not necessary for the plaintiff to establish his own 'title' in the property in question, but what he has to establish is in the first case, the claim to have the properly attached, and in the other to have it released from attachment.
With respect, I entirely agree with the observations quoted above.
14. This view finds support from the observations made in the Bench decision of this Court in AIR 1955 Raj 179 :--
Under the circumstances, when the claimant files a suit under Order 21 Rule 63, he has got to establish either his title to the properly, or if he relies only on his possession, then he has to establish that his possession is in his own right. In such a suit, if the other party is able to establish, the judgment debtor's title to the property, then mere possession of the plaintiff would not enable him to achieve any success in his suit. Order 21, Rule 63 does not contemplate that the plaintiff's suit should be decreed merely on the basis of possession even though the title in the property is proved in the judgment-debtor. In other words, if it is proved that the title of the property vests in the judgment debtor, then the plaintiff cannot be successful merely on the ground of possession unless he to further able to establish that his possession was adverse to the judgment-debtor and that he has perfected his title on the basis of adverse possession.'
The learned counsel for the appellants, however, argued that the words 'possession in his own right' should be taken to have reference to title. I regret, I cannot accept this argument. These words have been used as an alternative to proof of title and, therefore, cannot be taken to require proof of title. The learned Judges, in my opinion, intended to say that the possession should not be on behalf of the judgment-debtor but should be under a bona fide claim of right. As observed in AIR 1935 Mad 596 the question of possession and title cannot be altogether separated and each case has to be judged on its own facts and the circumstances.
In the present case, the plaintiffs obtained possession after a purchase at a public auction by the Thikana Ahore and obtained possession from the judgment-debtor who was in occupation at the time of the auction through the execution of rent notes by the judgment-debtor. The judgment-debtor's position is that of a mere tenant of the plaintiff-respondents. In these circumstances, I cannot but hold that the plaintiff-respondents have sufficiently established their possession and interest and their right to the property and are entitled to a decree. The contention in this behalf merits no consideration and is rejected.
15. There is yet another line of reasoning on which also the decree in favour of the plaintiff-respondents is justified Admittedly. Thikana Ahore auctioned the house and eventually issued a patta under the signatures of the Jagirdar of Ahore. The plaintiff-respondents paid the entire sale proceeds amounting to Rs. 751. They further paid Rs. 30 to the judgment-debtor respondent on account of compensation and got rent notes executed by the judgment-debtor-respondent and they were in possession through the judgment-debtor as tenant on the date of the attachment.
In these facts, it must be held that they had sufficient interest in the property to object to attachment. In this connection, it will be sufficient to make reference to Krishnananda Rao v. M. Venkata Ramanjaneyulu, (1964) 1 Andh WR 300. In that case it was observed that there is nothing in Order 21 Rule 58 which requires that a claimant should have interest in the immovable properly in the sense in which the expression 'interest' is used in the last paragraph of Section 54, Transfer of Property Act. The existence of a valid and pre-existing contract in favour of the claimant for the sale of the property brought under attachment clothes him with sufficient right and interest to enable him to intervene in execution with a claim under Order 21, Rule 58 and also to institute a suit under Order 21, Rule 63.
In this case a number of earlier decisions were referred to. The learned counsel for the appellants, however, relied upon Hormasji Manekji Dadachanji v. Keshav Purshotam, (1894) ILR 18 Bom 13 wherein it was held that a contract for the sale of immoveable property reciting the receipt of earnest money and providing for the execution of a proper conveyance within two months was held not to pass any title or interest in the property to the purchaser, but merely to give him a right against vendor personally to call for a conveyance and possession on paying the purchase-money. Without discussing in detail this case, it will be sufficient to refer to a subsequent case of the same High Court.
In Karalia Nanuhhai Mahomedbhai v. Mansukhram Vakhatchand, (1900) ILR 24 Born 400 under a contract of sale with respect to certain fields, possession was delivered to the vendee, and the whole of the purchase-money was paid to the vendor, but the transfer was not effected, as the necessary registered conveyance had not been executed. Subsequently a judgment-creditor sought for a declaration that the fields were liable to be attached and sold as the property of the judgment-debtor. Before the case was decided by the Court of first instance, a registered conveyance had been executed. Held, that the judgment-debtor was nothing more than a bare trustee and had no attachable interest in the property. The earlier case referred to by the appellants' counsel was justified on the ground that no purchase money had been paid.
16. In view of the principles of law discussed above and the facts of the case, I have no hesitation in agreeing with the courts below that the plaintiff-respondents have established the right to the property under terms of Order 21, Rule 63. Civil P. C. and are entitled to a decree.
17. There is no force in this appeal which is hereby dismissed with costs.