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Puttamma Shedthi Vs. Y. Sheena Shetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2090 of 1947
Judge
Reported inAIR1952Mad849
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 96; Evidence Act, 1872 - Sections 114
AppellantPuttamma Shedthi
RespondentY. Sheena Shetty and ors.
Appellant AdvocateK. Kuttikrishna Menon, Adv.
Respondent AdvocateT. Krishna Rao, Adv.
Cases ReferredMurugappa v. Tirumalai
Excerpt:
- .....a copy of the sale proclamation was affixed.4a. in support of the proposition that affixture of a copy of sale certificate in a conspicuous place of one of the items in a case where several plots are involved and situated in different places is not an effective delivery of all the properties, reliance was placed on a bench decision of this court in -- 'rukminamma v. ramayya', i.l.r. (1944) mad 262. it was laid down in that case that while several properties situated in different places were attached by one order of attachment and that order was affixed only in one of the places sought to be attached it could not he said that there was valid and effective attachment within the meaning of order 21, rule 54 (2) as affixture on one item of property was not sufficient to effect valid.....
Judgment:

Chandra Reddi, J.

1. The 9th defendant who is the legal representative of the 1st defendant is the appellant. The suit out of which this appeal arises was instituted by the two plaintiffs for a declaration that they are respectively entitled to A and B schedule properties and for a decree in their favour as against the 1st defendant the predecessor-in-interest of the present 9th defendant and for possession of these properties. In execution of the decree, the properties belonging to the 1st defendant were brought to sale on 22-6-1925 and were purchased by the 1st plaintiff who is no other than the nephew of the 1st defendant at Court auction for Rs. 1634-1-0. The sale was confirmed on 24-7-1925 and the sale certificate was granted to the auction purchaser on 12-9-1927. Subsequent to this purchase the 1st plaintiff sold a few items of the property purchased by him to the 2nd plaintiff described in schedule B on 16-1-1939. According to the plaintiffs the symbolic delivery of the property was taken by the first plaintiff as evidenced by Ex. P. 1 dated 7-7-1928.

2. The defence to the suit was that though the properties were purchased in the name of the 1st plaintiff consideration for the sale proceeded from the 1st defendant and the plaintiff was only a benamidar for the first defendant and that in any event the suit was barred by limitation as the 1st defendant was in possession of this property adversely to the plaintiff. It was pleaded on behalf of the defendants that the symbolical delivery said to have been effected on 7-7-1928, did not really interrupt the adverse possession as the provisions of Order 21, Rule 96, C.P.C. were not complied with.

3. The trial court decreed the suit holding that the sale price was paid by the 1st plaintiff and was not furnished by the 1st defendant and therefore the purchase was not benami for the 1st defendant. As regards the question of adverse possession, the trial court found that the symbolical delivery evidenced by Ex. P. 1 did interrupt the adverse possession and consequently the plea of the 1st defendant based upon adverse possession could not be accepted. In its opinion, the presumption under Section 114, Evidence Act that judicial official acts have been regularly performed would apply to this act, having regard to the return of the Amin regarding the affixture of a copy of the sale certificate and no further proof of the affixture is required. In appeal the appellate court agreed with the view of the trial court that the sale price was paid by the 1st plaintiff out of his own funds and did not proceed from the 1st defendant. On the question of adverse possession the District Judge contented himself by observing that he was unable to attach any importance to the suggestion put forward on behalf of the 1st defendant. In the result the appeal was dismissed.

4. It is this decision that is under appeal now. On the findings of the Court below the only question that arises for consideration is whether symbolical delivery evidenced by Ex. P. 1 is effective so as to save the suit from the bar of limitation. Ex. P. 1 says that the delivery order was proclaimed by tom tom & that a copy of the sale proclamation (sic. certificate?) was affixed to the door of the house situated in the suit property and that the possession of the suit property was delivered to the auction purchaser, that is, the 1st plaintiff herein. What is contended by Mr. Kuttikrishna Menon the learned counsel for the appellants is that all that Ex. P. 1 shows is that a copy of the sale proclamation (sic. certificate?) was affixed to the door of the house situated in one of theplots and that is not sufficient to make the symbolical delivery effective in respect of the other items of property. According to him the suit properties covered by different survey numbers, symbolical delivery of which is said to have been given under Ex. P. 1 are not so situated as to make the affixture in a conspicuous place of one plot sufficient to bring it within the purview of Order 21, Rule 96, C. P. C. His argument is that the survey numbers in which these properties arc included as set out in Ex. P. 1 disclosed that the several items of property affected by Ex. P. 1 are not contiguous but lie in different parts of the village and therefore there was no proper affixture within the meaning of Order 21, Rule 90, C. P. C. in respect of such of the plots as arc not adjoining the house on the outer door of which a copy of the sale proclamation was affixed.

4a. In support of the proposition that affixture of a copy of sale certificate in a conspicuous place of one of the items in a case where several plots are involved and situated in different places is not an effective delivery of all the properties, reliance was placed on a Bench decision of this court in -- 'Rukminamma v. Ramayya', I.L.R. (1944) Mad 262. It was laid down in that case that while several properties situated in different places were attached by one order of attachment and that order was affixed only in one of the places sought to be attached it could not he said that there was valid and effective attachment within the meaning of Order 21, Rule 54 (2) as affixture on one item of property was not sufficient to effect valid attachment of all the properties sought to be attached. This ruling of the Bench was followed in -- 'Murugappa v. Tirumalai', A.I.R. 1948 Mad. 191. Dealing with the point whether the presumption arising under Section 144, Evidence Act, illustration (e), namely, that judicial and official acts have been regularly performed could be applied when once it is proved that there was affixture of a copy of the order of attachment to one of the items of the properties Rajamannar J. as he then was, observed:

'It appears to be important to bear in mind the distinction between two things. It is true that that illustration (e) in Section 114, Evidence Act, declares that judicial and official acts may be presumed to have been regularly performed. But it does not say that it may be presumed that any particular official or judicial act has been performed. No doubt when the evidence is that a particular judicial or official act has been performed and there is no other evidence on record it may be presumed that that particular judicial or official act was regularly performed. But when the dispute is whether a particular official or judicial act was performed or not I think there is nothing in law which enables a court to presume that that act as a matter of fact was performed.'

On the principle enunciated in this decision what Mr. Kuttikrishna Menon argues is that even though Ex. P. 1 furnishes some evidence of a copy of the sale proclamation (sic. certificate) being affixed in a conspicuous place in one of the plots there is no presumotion that the affixture as required by law was made with reference to all the plots of land if all of them are not in one place and there should be evidence of affixture of copies of sale certificates in some conspicuous places in all the plots.

5. Though the two rulings cited above werewith reference to the provisions of Order 21, Rule 54p2 I have no doubt that they apply with equalforce to the interpretation of relevant provisionsof Order 21, Rule 96 which require that

'where the property sold is in the occupationof a tenant or other person entitled to occupythe same and a certificate in respect thereofhas been granted under Rule 94 the courtshall on the application of the purchaser,order delivery to be made by affixing a copyof the certificate of sale in some conspicuousplace of the property.'

It is seen that the portion of the Order 21, Rule96, C. P. C. material to this case, namely, thewords 'shall be affixed on a conspicuous partof the property a copy of the order' is thesame as in Order 21, Rule 54 and thereforethe rule of law stated in the above decisionswill equally apply with equal force to this case.Hence, the only question to be considered iswhether this affixture of a copy of the salecertificate in one place in this case is sufficientto bring the symbolical delivery within thepurview of Order 21, Rule 96. This in turndepends upon whether all the plots are situatedin one and the same place or whether they liein different parts of the village. The towerappellate court has not applied its mind to thisaspect of the question and has not given anydefinite finding. I, therefore, call upon thelower appellate Court to submit a finding asto whether these properties are so situated asto render the affixture in this case effective asregards all the items of property for purposesof symbolical delivery within the meaning ofOrder 21, Rule 96, C. P. C. Opportunities maybe given to the parties to adduce evidence thatmay be necessary. Time for submission of thefinding, two months. Objections if any twoweeks thereafter.


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