Ganga Prasad v. Lala Sohan Lal — 1954 DIGILAW 155 (ALL)

JUDGMENT R. Singh, J. - This is a Plaintiff's second appeal arising out of a suit for possession. 2. The facts of this case are simple although some of the points involved are not altogether free from difficulty. The houses in dispute in this suit originally belonged to Chunni Lal who had two sons, Jagannath and Gopal Krishna. Chunni Lal and Jagannath made a mortgage of these houses on the 1st June, 1927, in favour of one Mst. Champo for a sum of Rs. 3000/-. Subsequently it appears that Chunni Lal fell into arrears in the matter of income tax dues and these houses were sold for the realization of the arrears of income tax on the 24th July, 1931. The houses were purchased by one Raja Ram Bhargava who obtained a sale certificate. Raja Ram Bhargava sold his rights acquired at the auction sale in favour of Behari Lal on the 21st November, 1936. The mortgagee rights which vested in Mst. Champo also changed hands and were purchased by Sohan Lal on the 24th September 1937. On the 30th August, 1940 Behari Lal Shukla who had purchased the houses from Raja Ram Bhargava executed a sale deed in respect of those houses in favour of Ram Ghulam the original Plaintiff. On the 31st August, 1940, Sohan Lal who had purchased the mortgagee rights from Champo brought a suit on the basis of the mortgage, for Rs. 6,500/- and a decree was obtained by him. Ram Ghulam, then brought the suit which has given rise to this appeal, on the 4th May 1953. Sohan Lal, Defendant No. 7 was not originally made a Defendant but was subsequently impleaded on the 12th April, 1944, as it transpired that he had obtained a sale deed dated the 1st May, 1943 from Jagannath. All the Defendants including Defendant No. 7 contested the suit but the main contest was on behalf of Sohan Lal. He alleged that the auction sale for the recovery of arrears of income tax was invalid as the tehsildar who held the auction had no right to sell the property and that there had been no proper confirmation of sale. The Plaintiff had, therefore, acquired no rights from the transferee of Raja Ram Bhargava, the original purchaser at the auction. He alleged that the auction sale for the recovery of arrears of income tax was invalid as the tehsildar who held the auction had no right to sell the property and that there had been no proper confirmation of sale. The Plaintiff had, therefore, acquired no rights from the transferee of Raja Ram Bhargava, the original purchaser at the auction. It was also alleged that the suit was barred by limitation and that the sale deed obtained by Ram Ghulam was a fraudulent transaction and was obtained to defeat and deley the creditors. 3. A replication was filed on behalf of the Plaintiffs in which it was alleged that the deed obtained by Sohan Lal was a transaction made during the pendency of the suit and as such was had on the ground of his pendens. 4. The trial court repelled all the contentions raised on behalf of the Defendants and decreed the claim. The original Plaintiff Ram Gulam it appears died after the decree had been passed in his favour and an appeal was instituted by the unsuccessful Defendants against the legal representatives of Ram Gaulam. The learned District Judge who heard the appeal, however, held that the auction sale held in 1931 was not a valid sale and that no title passed to Raja Ram Bhargava at this sale. He also held that the sale deed obtained by Ram Ghulam from Behari Lal was a fraudulent transaction within the meaning of Section 53, Transfer of Property Act He concurred with the trial Court on the point of limitation. The appeal was ultimately allowed by the District Judge and the Plaintiffs have now come up in second appeal. 5. The first point which arises for determination in this appeal is whether the auction of the houses made for the recovery of arrears of income tax on the 24th July, 1931, was held validly and was properly confirmed. It is not seriously disputed that there was an auction of the houses held by the tehsildar on this date for the recovery of arrears of income tax due by Chunni Lal the owner of the houses. The Plaintiff filed the original sale certificate granted to him vide Ex 4. It is not seriously disputed that there was an auction of the houses held by the tehsildar on this date for the recovery of arrears of income tax due by Chunni Lal the owner of the houses. The Plaintiff filed the original sale certificate granted to him vide Ex 4. It has been argued on behalf of the Respondents that the sale was not a proper sale in as much as the tehsildar had no right to sell the property and there had been no valid confirmation of the sale. Reliance has been placed on the provisions of Section 46(2) of the Income Tax Act and Sec- 146(h) Land Revenue Act. Section 46(2), Income Tax Act lays down that "the income tax officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from the Assessee and the Collector on receipt of such certificate shall proceed to recover from such Assessee the amount specified therein as if it were an ar-rear of land revenue." Section 146 Land Revenue Act describes the various modes for the recovery of land revenue and one of the modes prescribed is by sale of ''other immoveable property of the defaulter" Section 164 Land Revenue Act lays down that every sale under Chapter VIII, that is for the recovery of arrears of land revenue shall be made either by the Collector in person or by an Assistant Collector especially appointed by him in this behalf. It would thus appear that it was open to the Collector to appoint an Assistant Collector to hold a sale for the recovery of arrears of income tax. In the present case the tahsildar who was an Assistant Collector held the auction sale and the sale certificate Ex. 4 filed by the Plaintiff shows that the sale had been held at the instance of the Collector. The tahsildar, therefore, had been empowered to hold the sale and was competent to sell the property. It remains now to be seen if there had been a proper confirmation of sale by the Commissioner as required by Section 174, Land. Revenue Act. The tahsildar, therefore, had been empowered to hold the sale and was competent to sell the property. It remains now to be seen if there had been a proper confirmation of sale by the Commissioner as required by Section 174, Land. Revenue Act. A great deal of argument has been advanced on this point on behalf of the Respondent, Sohan Lal, and it has been vehemently pressed that there is no evidence in this case of the sale having been confirmed by the Commissioner Reliance has been placed on the other hand on behalf of the Appellants on the sale certificate Ex. 4. It is mentioned in it that the auction had been confirmed in accordance with procedure by the Court. The exact words are: Nilam mazkoor hasbzabta adalat se manrzoor hua. 6. These words have been interpreted by the two Courts below in different ways. The trial Court has interpreted these words to mean that the confirmation of the sale was made by the authority empowered so to do which meant the Commissioner whereas the learned district Judge has come to the conclusion that as the sale certificate bears the signatures of the tahsildar, the word 'adalat' should be interpreted to mean the tahsildar. I am unable to agree with the view taken by the learned District Judge on this point. The words in the sale certificate clearly show that the sale had been confirmed according to procedure of law and these words show that the confirmation was made according to law in the regular manner which could only mean a confirmation by the Commissioner. The tahsildar was evidently not empowered to confirm the sale. 7. The learned Counsel for the Respondents has relied on the heading which is to be found on the top of the sale certificate wherein it is mentioned: Certificate nilam jaeded ghair mankula mahkumah Order 21, qaida 94 majuma zabta diwani san 1908 Iswi. 8. Evidently the sale which was to be held for recovery of arrears of income tax as arrears of land revenue could not be held in accordance with the provisions of the CPC but according to the procedure laid down in the land Revenue Act for the recovery of arrears of land revenue. 8. Evidently the sale which was to be held for recovery of arrears of income tax as arrears of land revenue could not be held in accordance with the provisions of the CPC but according to the procedure laid down in the land Revenue Act for the recovery of arrears of land revenue. It has been argued on behalf of the Appellants that the words given at the top of the sale certificate are only a vague description of the sale certificate as no form was prescribed for such sale certificates in the Land Revenue Act. It is possible that the clerk who drafted the sale certificate described it as a sale certificate which is issued under the provisions of C 21, r, 4 C.P.C. by way of analogy and it is difficult to infer from this circumstance alone that the sale was also held in accordance with the provisions laid down in O 21 C.P.C. Unfortunately the entire record of the sale proceedings has been weeded out and it is not possible to find out exactly as to what procedure was adopted or whether there had been a proper confirmation of sale by the Commissioner as requited by law. It has been argued that all judicial and official acts should be deemed to have been regularly done in view of the presumption to be raised u/s 114, Evidence Act. The Defendants contention on the other hand is that the presumption cannot be taken to prove facts which ought to be proved independently. If an auction sale is held and a sale certificate is issued, it would well high be impossible for an auction purchaser to prove that there had been a proper proclamation and that all other formalities had been gone into in connection with the sale after the record has been weeded out. Learned Counsel for the Respondents has pointed out that in the year 1934 when a suit for arrears of rent had been brought against Raja Ram by Chunni Lal, it had been expressly pleaded on behalf of those Defendants who were the original mortgagors that the sale was invalid. A copy of the written statement in the suit has been filed and it is Ex. C.6. A copy of the written statement in the suit has been filed and it is Ex. C.6. It appears from this written statement that the plea taken by the mortgagors was that the tahsildar was not competent to sell the property and that the sale was invalid. No plea was taken to the effect that the sale not been properly confirmed. If the Defendant in that suit had specifically raised the plea that the sale had not been properly confirmed, it would have been open to the Plaintiff or his predecessors to have obtained a copy of the order for confirmation. The only objection taken to the sale was that the tahsildar was not competent to sell the property and if the sale certificate itself showed," that the tahsildar had authority to sell on behalf of the Deputy Commissioner, the Plaintiff could not make any further inquires or obtain any further documents in order to safeguard his rights for the future. The plea that the sale had not been properly confirmed by the proper authority was taken for the first time in this suit by Sohan Lal after the record of the sale proceedings had been weeded out. 9. A number of rulings has been cried on behalf of the Respondents in support of the contention that the presumption which may be raised u/s 114, Evidence Act cannot be extended to cover facts which ought to be proved as facts. As pointed out above, in the present case there had been an auction sale for the recovery of arrears of income tax as land revenue. This sale was conducted by a person properly authorised and a sale certificate was issued. It may, therefore, be safely presumed that the procedure for conducting the sale and for confirmation was duly and regularly observed. It is not necessary to refer to the various rulings cited on behalf of the Respondents in support of their contention as in all these cases, the presumption had not been extended to facts which ought to be proved separately. More over the time which has elapsed since the sale was held and the circumstance that the file has been weeded out have also to be taken into consideration in applying the presumption which may be raised u/s 114, Evident Act. More over the time which has elapsed since the sale was held and the circumstance that the file has been weeded out have also to be taken into consideration in applying the presumption which may be raised u/s 114, Evident Act. It is impossible for the Plaintiff who is the successor-in-interest of the original auction purchaser to prove as a matter of fact by oral or documentary evidence, facts which go to show that the sale had been conducted properly and a proper order for confirmation had been made. The presumption of regularity would, therefore, arise in respect of the proceedings connected with the auction sale in this case and there is nothing to raise any doubts with regard to the regularity and the validity of the sale held by the tehsildar and in respect of which a sale certificate had been issued to the auction purchaser. 10. Another point which has been pressed is that the sale certificate does not appear to have been issued by the Collector as required by Section 177, Land Revenue Act. No doubt the sale certificate bears the signatures of the tehsildar. u/s 164, Land Revenue Act, the Collector was authorized to appoint an Assistant Collector to make the sale. This may also mean that the person who was authorized to make the sale was also authorized to issue a sale certificate. There is nothing in Section 177, Land Revenue Act to bar such a procedure. Even if the contention of the learned Counsel for the Respondents may be taken to be correct, the omission of the Collector to sign the sale certificate would not invalidate the sale or affect the rights of the auction purchaser adversely if the sale has been properly confirmed. I, therefore, prefer the view taken by the trial Court to that taken by the learned District Judge and hold that there had been a proper sale of the property for realization of arrears of income tax as land revenue and that Raja Ram Bhargava had purchased the property validly at the auction. 11. The transfer of the property by Raj Ram in favour of Behari Lal and the subsequent sale by Behari Lal in favour of Ram Ghulam have also been established. The original sale deed (Ex. 3) obtained by the Plaintiff from Behari Lal is on record. 11. The transfer of the property by Raj Ram in favour of Behari Lal and the subsequent sale by Behari Lal in favour of Ram Ghulam have also been established. The original sale deed (Ex. 3) obtained by the Plaintiff from Behari Lal is on record. The endorsement of the sub-registrar on the back of the sale deed shows that Rs. 190 out of the consideration were paid in his presence and the receipt of Rs. l0 had been acknowledged by the executant. 12. The second point which has been raised in this appeal is that the sale deed in favour of Ram Ghulam was a fraudulent transaction and the learned District Judge has also come to that conclusion. Section 53, Transfer of Property Act makes transfers made to defeat or delay a creditor or creditors voidable at the option of the person or persons so defeated or delayed. Behari Lal was the owner of the equity redemption till he sold it to Ram Ghulam and he had, therefore, a perfect right to transfer the equity of redemption to anybody he chose. The mere fact that this transfer was effected a day before Sohan Lal the mortgagee filed his suit for recovery of the mortgage money would not make the transaction fraudulent in as much as the rights of Sohan Lal were not in the least affected by a transfer of the equity of redemption by the mortgagor to another person. This act of Behari Lal could not in any way jeopardize the rights of his mortgagee or defeat or delay the recovery of the debt due under the mortgage. I am unable, therefore, to agree with the view taken by the lower appellate Court that the transaction in favour of Ram Ghulam was fraudulent within the meaning of Section 53, Transfer of Property Act. 13. The third point which arises for determination in this appeal is if the suit was barred by limitation. It is not disputed that Sohan Lal was impleaded in this suit on the 12th April, 1944, and limitation would run against him u/s 22, Indian Limitation Act only from the date on which he was impleaded as a party to the suit. It is not disputed that Sohan Lal was impleaded in this suit on the 12th April, 1944, and limitation would run against him u/s 22, Indian Limitation Act only from the date on which he was impleaded as a party to the suit. Reliance has been placed on Article 142, Limitation Act on behalf of the Respondent Sohan Lal and it has been argued that the Plaintiff ought to have established his possession of the houses within twelve years before suit. Article 142 applies only to suit in which it is alleged or established that the Plaintiff had been dispossessed by the Defendant. In the present suits the allegations of the Plaintiff were that his predecessor had purchased the property at an auction sale and that he should be put in possession of that property by virtue of the sale certificate obtained by his predecessor. No question of dispossession of the Plaintiff or his predecessors arose under such circumstances and it would not, therefore, be proper to apply .the provisions of Article 142, Limitation Act to the present suit. Sohan Lal had definitely given up the plea of adverse possession and the statement of his counsel was recorded by the trial Court. The Plaintiff who had obtained title to the houses at the auction was entitled to maintain a suit within twelve years of the purchase against the persons who were in possession of it. It remains now to be seen if Sohan Lal was in possession of the houses on the date when the suit was instituted. The trial Court has definitely come to the conclusion that Sohan Lal was not in possession of the houses on the date when the suit was instituted by Ram Ghulam. The contesting Defendant, Sohan Lal had filed a sale deed purporting to have been executed by Jagannath in his favour on the 1st May, 1943 a few days before Ram Ghulam, brought the suit which has given rise to this appeal. This sale deed was, however, not registered till the 21st August, 1943. Moreover the sale deed was executed by Jagannath who had no title left in the houses after they had been sold at auction for the realization of arrears of land revenue and his possession, if at all after the sale was that of a trespasser. This sale deed was, however, not registered till the 21st August, 1943. Moreover the sale deed was executed by Jagannath who had no title left in the houses after they had been sold at auction for the realization of arrears of land revenue and his possession, if at all after the sale was that of a trespasser. Jagannath could not, therefore, make any valid transfer of any rights in the houses to Sohan Lal and Sohan Lal could not acquire any title from Jagannath. If, however, Sohan Lal could have succeeded in entering into possession of the houses before Ram Ghulam brought a suit for possession, he could have pleaded that he had not been impleaded as a party at the proper time. But although the sale deed was executed on the 1st May, 1943, no consideration of the sale deed was paid on that date. The sale deed became effectual if at all on the 21st August, 1943, when it was registered and the consideration was paid. Sohan Lal could not, therefore, have obtained possession even if it be believed that he would be deemed to have acquired rights under the sale deed with effect from the 1st May, 1943. As pointed out above no title passed by means of the sale deed as Jagannath himself had no right or title in the houses which he purported to have transferred to Sohan Lal by means of the sale deed dated the 1st May, 1943. 14. It was urged on behalf of the Plaintiffs that the transaction of sale obtained by Sohan Lal could not be given effect to as the transaction was hit by lis pendens. As remarked above, Sohan Lal had acquired no title and did not eater into possession of the houses till long after the suit had been instituted so no question of lis pendens could arise in this suit. Sohan Lal was impleaded as a party when it was brought to the notice of the Plaintiff that he had entered into or claimed possession of the houses. 15. Sohan Lal was impleaded as a party when it was brought to the notice of the Plaintiff that he had entered into or claimed possession of the houses. 15. It would thus appear that the Plaintiff who had obtained a valid title to the house from Behari Lal who had himself purchased the house from Raja Ram Bhargava, the original purchaser at the auction sale, had become the owner of the house and was entitled to maintain the present suit which has given rise to the present appeal. The pleas raised on behalf of the Defendant Sohan Lal and other Defendants have no force. 16. The only point which now remains to be decided is on what terms the Plaintiff is entitled to a decree for possession. The Plaintiff had originally not offered to pay the mortgage money due to Sohan Lal under the decree obtained by him on the basis of the mortgage and an issue was framed to that effect by the trial Court and it is issue No 5(d). Learned counsel for the Appellants, Sri S.C. Das has, however, stated that his clients have no objection and are willing to pay the amount of the mortgage decree due to Sohan Lal. In view of this offer and admission on behalf of the Appellants, it is not necessary so decide whether the Plaintiff was bound to pay up the mortgage decree before he could claim possession of the houses. This offer of the Appellants was but fair under the circumstances. The lower Court has, however, not determined the amount due under the decree. It has also been suggested on behalf of the Appellants that the amount realised by Sohan Lal as rent of the houses which happens to be in his possession should be set off against the amount due under the decree. Sohan Lal has somehow entered into possession of the houses. The mortgage was a simple mortgage and the decree was for sale. It was open to Sohan Lal to put his decree into execution and get the houses sold. He, however, entered into possession of the houses with the consent of the original mortgagors and has been in possession for some time. The mortgage was a simple mortgage and the decree was for sale. It was open to Sohan Lal to put his decree into execution and get the houses sold. He, however, entered into possession of the houses with the consent of the original mortgagors and has been in possession for some time. The Appellants are agreeable to pay up the decretal amount due upto the date of this decree in appeal less the amount realised by Sohan Lal on account of the rent of the houses. 17. The appeal is accordingly allowed and the claim for possession of the houses is decreed on payment of the amount due under the decree passed in suit No. 46 of 1940 on the basis of the mortgage executed on the 1st June, 1927. The Plaintiffs-Appellants shall get their costs in all the Courts from the Defendants. The record shall be sent to the Court below for finding out the amount due under the decree upto the 15th July, 1954, and the amount of rent realised by Sohan Lal on account of the houses in dispute upto the 15th July, 1954. The trial shall send its findings within three months after which ten days time will be allowed for filing objections against the findings of the trial court on the amount due under the decree or on account of rent. A time limit for the payment of the money will be fixed on receipt of the findings of the trial Court on the points referred to. 18. Leave for special appeal is granted.