Zaheera Banu Kareem vs Gomathi Bai G. Kamath on 14 June, 1993
Equivalent citations: ILR 1994 KAR 662
Author: Hanumanthappa
Bench: Hanumanthappa
JUDGMENT
Hanumanthappa, J.
1. Pursuant to the Reference made by the Hon'ble Supreme Court by its Order dated 31.10.1991 in Civil Appeal No. 624 of 1973, finding of this Court is given on the Point, viz., "legal effect of the order of the restoration of the land in favour of Bashir Ahmed".
2.In order to see that both sides are given sufficient opportunity to establish their case, this case was adjourned many times as requested by both sides. Thus the matter was heard on several dates of hearing. On the Point involved both sides made me to go through various documents produced in the case, important Sections of the Mysore Land Revenue Code and the Bombay Land Revenue Code, Section 43 of the Transfer of Property Act and the Authorities relied (sic) by both sides in support of their rival contentions.
3. To give a finding on the Point of Reference made by the Hon'ble Supreme Court, it is proper to mention a few facts, as their narration will avoid the confusion which had set in.
Originally one Kaushik was the owner of the lands in dispute. He sold the said lands to one Syed Basheer Ahmed in the year 1942. The said Syed Basheer Ahmed did not pay the land revenue in respect of the lands in question for some time. As Syed Basheer Ahmed became defaulter in payment of land revenue, the State exercising its power under the provisions of the Mysore Land Revenue Code, 1888 (hereinafter referred to as the 1888 Code) forfeited the said lands to the Government during the year 1948-49. As there were no bidder, in view of Section 55 of the 1888 Code the Government itself purchased the said lands in Survey Nos. 29 and 30 of Sonnamaranahalli Village and Survey Nos. 35 and 40 of Gullia Nandi Gunta Village, Thubagere Hobli, Doddaballapur Taluk, Bangalore District. Earlier to this, there was some dispute between Padmanabha Kamath and Syed Basheer Ahmed. Padmanabha Kamath filed a suit against Syed Basheer Ahmed in the High Court of Madras in O.S.No. 148 of 1946. The said suit was decreed in favour of Padmanabha Kamath. The decree was transferred to the District Court, Bangalore, and was put in execution in Execution Case No. 6 of 1953. The Executing Court brought the lands for sale. On 3.9.1953 Padmanabha Kamath purchased the said lands as he was the highest bidder. On 7.6.1954 the sale in favour of Padmanabha Kamath was confirmed. On 16.3.1955 the Sale Certificate at Exhibit P.3 in respect of the lands in question was issued to Padmanabha Kamath. On 2.1.1965 in Misc. Case No. 127 of 1955 possession of the lands in question was handed over to the auction-purchaser, Padmanabha Kamath. Upto this date by virtue of the forfeiture of the land by the Government in the Revenue records the nature of possession was described as 'Government Phada' under the Kathedar column. On 2.1.1956 Padmanabha Kamath sold the lands under Exhibit P.1 to Smt. Gomathi Bai G. Kamath, w/o Govinda Kamath, resident of Bombay, for valuable consideration. From the date of purchase till 1960-61 the name of the plaintiff, i.e., Smt. Gomathi Bai G. Kamath, was shown in the Exhibits at Exhibit P-8 series as the, person in possession of the property either authorised or unauthorised. The plaintiff contended that during the last week of July, 1967, when the plaintiff's husband went to the lands in question, he found that the defendant, i.e., Smt. Zahera Banu Kareem, was cultivating the lands, viz., S.No. 29 and 30 of Sonnamarnahalli. This action of the defendant was objected by the plaintiff by issuing a legal notice and subsequently the plaintiff filed a suit, O.S. No. 31 of 1967, in the Court of the Principal Rural Civil Judge, Bangalore, for declaration and possession of the lands in dispute and for other reliefs, viz., mesne profits, etc. In the plaint the plaintiff contended that (i) Padmanabha Kamath by virtue of purchasing the lands in Court auction perfected his title to the lands and as she had purchased the lands from Padmanabha Kamath her title to the lands was a valid one; (ii) the right, title and interest over the lands in question were transferred to the plaintiff by such sale as per the Sale Deed dated 2.1.1956 at Exhibit P. 1.
4. In the suit the defendant filed her written statement denying the claim of the plaintiff. She contended in the Written Statement as follows:
The lands were resumed to the Government for non-payment of land revenue in the year 1948-49. The lands were shown as 'Government Phada' in the revenue records. Till 1961 the Government continued to have title over the lands. The lands were purchased by Padmanabha Kamath in Court auction in Ex.Case No. 6 of 1952-53 in execution of the decree in O.S.No. 148 of 1946 obtained by him against Syed Basheer Ahmed. As the Government had resumed the lands in question, Padmanabha Kamath did not acquire any right over the lands by such purchase. In the year 1961 after receiving the arrears of land revenue due to the Government, the lands were restored to Syed Basheer Ahmed on 22.6.1961 and in turn Syed Basheer Ahmed divided the lands and sold to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus, by restoration of the lands in question to Syed Basheer Ahmed on 22.6.1961 the lands became free from all encumbrances. On 1.4.1966 the defendant purchased the lands in question from the said Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus contending the defendant requested that the suit be dismissed as not maintainable.
5. On the basis of the Pleadings the trial Court framed the following issues:
"1. Is the Court sale in Ex.6/52-53 referred to in the plaint true and did it confer title to the plaintiff's vendor ?
2. Did the plaintiff's vendor take possession of the property in Misc. No. 127/55?
3. Has the plaintiff been the owner of the schedule property by virtue of the sale deed dated 2.1.1956 and rectification document dated 16.12.1957?
4. Was the plaintiff in possession of the schedule property ?
5. Where the suit lands resumed by the Government in the year 1948-49 as pleaded and whether Syed Basheer Ahmed, the Judgment debtor in Ex.No. 6/52-53 had no right, title or interest in the schedule property on the date of Court sale ?
6. Were the suit lands restored to him in 1961 and did he become the owner of the property in 1961 ? If so, what will be the effect of restoration of the suit land in his favour ?
7. Had the plaintiff made improvements in the land and has the defendant damaged the well, motor, etc. and is the plaintiff entitled to damages ? If so, to what amount ?
8. Is plaintiff entitled to mesne profits ? If so, to what amount?
9. To what relief, the parties are entitled ?"
In support of their case both parties produced certain documents. On the plaintiff's side the following documents were produced :
1. Registered sale deed dated 2.1.1956 in favour of the plaintiff marked with letter 'A';
2. Registered Rectification deed dated 16.12.1957 marked with letter 'B';
3. Sale certificate issued by the Court of the District Judge, Bangalore, dated 7.6.1954 marked with letter 'C';
4. Two encumbrance Certificates in respect of the suit schedule lands covering the period from 25.11.1952 to 24.7.1967 marked with letters 'D' and 'E';
5. Certified copies of Extracts for the entries made in the Index of lands and Record of Rights marked 'F-Series' (Four in number);
6. Copy of the legal notice dated 27.7.67 with postal acknowledgment marked 'G' and 'G-1'; and
7. Copy of Power of Attorney of the plaintiff.
On the defendant's side the following documents were produced:
1. Sale deed dated 1.4.66 executed by S, Nazir Ahmed;
2. Sale deed dated 1.4.66 executed by Rahantunnissa in favour of defendant;
3. Encumbrance certificate;
4. Bills issued by the Mysore State Electricity Board;
5. Cash bill of M. Srinivascharlu and Co., and
6. Guarantee card.
Before the trial Court the defendant was placed exparte. Hence, the trial Court accepting the contentions raised by the plaintiff decreed the suit. Aggrieved by the same, the defendant preferred an appeal in R.A.No. 2 of 1970 on the file of the Principal District Judge, Bangalore. Before the learned District Judge many grounds were urged. However, the relevant ground for the purpose of giving a finding on the Reference made is as follows:
"That even on merits the decree and judgment of the lower Court was unsustainable because that the plaintiff had not derived any right, title or interest under the sale deed because her vendor had not derived any right, title or interest under the Court auction sale because the judgment debtor had not any subsisting right in the property on the date of the auction."
After hearing both sides, the learned District Judge formulated several Points for Determination out of which the following Points are relevant for the present purpose:
1. "Whether the plaintiff had acquired right title, and interest under the sale deed dated 2.1.1956 under Exs.P.1 and P-2?"
2. "Whether the plaintiff was in possession and enjoyment of the suit schedule lands as asserted by her?"
3. "Whether the defendant has acquired right, title and interest in the suit schedule properties under her sale deed dated 22.6.62?"
4. "Whether she is in possession and enjoyment of the suit lands?"
The learned District Judge after considering the entire material produced found thus:
"Documents Ex.P.8 series and Ex.P.9 series unambiguously show that in 1951 the land was registered in the name of the Government, and by virtue of such transfer the original owner Syed Basheer Ahmed must be deemed to have been divested of his rights except his right to reclaim the land on payment of land revenue. When the sale was held the auction purchaser at the Court sale must be deemed to have purchased such right, title and interest as the Judgment debtor had in the said lands. Applying this standard two inferences can be drawn viz., (i) the rights of the Judgment debtor in the land were extinguished in 1951 when the Government resumed the lands subject only to the right of the pattadar to reclaim the land on payment of arrears of land revenue and (ii) that when the lands were sold by the Court in auction in execution of the decree the auction purchaser, namely, the vendor of the plaintiff derived all such rights as were with the judgment-debtor. The judgment debtor admittedly had the right to reclaim the land on payment of arrears of land revenue. Therefore, Syed Basheer Ahmed the judgment debtor had no right, title or interest after the Court sale. His rights were completely extinguished and new rights were created in favour of the auction purchaser. He and he alone could have reclaimed the land."
Thus observing the learned District Judge held that the auction purchaser perfected his title to the property subject to his payment of arrears of land revenue if and when the Government thought fit to disturb his possession or the purchaser himself thought fit to prefer his title. Making a reference to Exhibit P.4 -- the Delivery Receipt, Exhibit P-7 - the Treasury Challan dated 16.6.1959 and Exhibit P-6 -the notice dated 11.7.1961 which came into existence prior to the dispute between the parties the learned District Judge held that they conclusively establish that the plaintiff was in possession of the said lands arid cultivated the same. Thus a categorical finding was given by the learned District Judge that the plaintiff was in possession and enjoyment of the lands in question between 1956 and 1961. Whereas the suit was filed in the year 1967 and even if the defendant was in possession it will not confer any right, title and interest on the defendants. The learned District Judge also held that when the Judgment-debtor preferred the appeal challenging the exparte decree, an interim order of stpy of execution was granted subject to the condition that the judgment-debtor should furnish security for due performance of the decree. But the same was not complied with. As such the learned District Judge found that the decree obtained by Padmanabha Kamath was executed and the plaintiff was put in possession of the property. Thus holding the learned District Judge by his judgment and decree dated 14.12.1970 dismissed the appeal.
6. In R.S.A, No. 964 of 1971 the judgments and decrees of the Courts below were challenged. But, this Court rejected this Appeal at the stage of admission itself as there was no ground to interfere, by the order dated 26.10.1971. An Appeal in Civil Appeal No. 624 of 1971 has been preferred before the Supreme Court against the Order of this Court rejecting the Regular Second Appeal. In the said Appeal the Supreme Court requires a finding from this Court as to the legal effect of the order of restoration of the land in favour of Basheer Ahmed.
7. Both sides in addition to putting forth their arguments took me through the documents referred to above and the orders made.
8. Sri. Karanth, learned Counsel for the appellant/defendant, contended as follows:
The plaintiff's vendor, viz., Padmanabha Kamath, had no title over the lands, as, on the date of Court auction the Judgment-debtor/Basheer Ahmed had no right over the lands and the lands were forfeited and resumed to the Government. Subsequently, the lands came to be shown as 'Government Phada' in the Revenue records. Subsequent to the Court's auction sale and the plaintiff's vendor purchasing the lands in question, the Government restored the lands to Syed Basheer Ahmed/Judgment-debtor on receipt of the arrears of land revenue from him. By such restoration, the land became a free grant in favour of Syed Basheer Ahmed and the same was exclusively for his benefits. By virtue of such restoration Syed Basheer Ahmed acquired a title over the property and also a right to alienate the lands. Accordingly he sold the lands to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed from whom the appellant/defendant purchased the same. By virtue of such purchase the defendant perfected her title to the properties. Though the decree-holder/Padmanabha Kamath who was the plaintiff's vendor had initiated proceedings against Syed Basheer Ahmed earlier to forfeiture of the lands by the Government, the forfeiture took place earlier to Padmanabha Kamath obtaining a decree against Syed Basheer Ahmed and the decree-holder/Padmanabha Kamath purchased the lands in Execution Case No. 6 of 1952-53 on 3.9.1953. It was further contended by the learned Counsel for the appellant that in view of Section 54 of the 1888 Code whatever rights Basheer Ahmed had were obliterated by virtue of forfeiture of the lands by the Government. It was also contended that the question of pleading equity by the plaintiff does not arise in this case. Sri Karanth, learned Counsel for the appellant/defendant, while reiterating the above contentions raised before the Courts below submitted that in view of Section 54 of 1888 Code the decree-holder did not acquire any right, title or interest over the property and as such the transfer of the lands made by him (Padmanabha Kamath) in favour of the plaintiff was not a valid one as no title was passed on to the plaintiff. When there was a forfeiture and resumption it shall be presumed that whatever right the earlier occupant had was extinguished and by virtue of restoration of lands such occupant became a holder of fresh grant free from all encumbrances. According to him, Section 43 of the Transfer of Property Act also disentitles the plaintiff and her vendor in setting up any claim over the lands. In support of his contentions Sri. Karanth placed reliance on the following Authorities:
(1) BATCHU RAMAYYA v. DHARA SATCHI 20 Madras L.J.635, wherein the High Court of Judicature at Madras, while interpreting the scope of Section 43 of the Transfer of Property Act and alienation of service inam lands held that Section 43 of the Transfer of Property Act cannot be invoked in favour of alienee of the inam land whose alienation is wholly void under the law.
(2) PRASANNA KUMAR MOOKERJEE v. SRIKANTHA ROUT ILR Vol XL Calcutta 173, the Calcutta High Court, while considering non-payment or discontinuance of payment of rent, acquiescence, etc. held that non-payment of rent or discontinuance of payment of rent did not by itself constitute adverse possession. The relevant observations in the said Decisions regarding the scope of Section 43 and the estoppel are as follows:
"It need not be disputed that if a grantor, who has no title or a defective title or an estate less than what he assumes to grant conveys with warranty or covenants of like import, and subsequently, acquires the title or estate which he purports to convey, or, perfects his title, such after-acquired or perfected title will enure to the grantee as to his benefit by way of estoppel. .. ..
In case of a voluntary private alienation, the deed, either expressly or by necessary implication, shows that the grantor intended to convey and that the grantee expected to become vested with an estate of a particular kind: the deed may consequently found an estoppel, although it contains no technical covenents. .. ..
The case of an execution sale, however, stands on an obviously different footing. The decree-holder does not guarantee the title of the judgment-debtor; the intending purchaser knows that under the law he can acquire nothing beyond the right, title and interest of the judgment-debtor.
.. ..
It was held that the extent of an execution raises an estoppel as much as in the case of conveyance, the contrary view, namely, that an execution sale of property not belonging to the judgment-debtor does not estop him from asserting against the purchaser title subsequently acquired, has been maintained in cases of recognised authority."
(3) In ABDUL REHMAN IBRAHIM v. VINAYAK JAYAVANTRAO DESHMUKH 29 Bombay L.R. 1056, while explaining forfeiture and re-sale of the mortgaged property, the High Court of Bombay held as follows:
"The right to redeem was lost owing to the forfeiture of the land under the original Section 56 of the Bombay Land Revenue Code; and that before the plaintiff could succeed he must show that the forfeiture and the revenue sale were due to the default of the mortgagee in not paying the assessment and that the income of the land was sufficient to pay the assessment or that in some way the mortgagor had put the mortgagee in funds wherewith to pay the assessment."
(4) SABAPATHI PILLAY v. THANDAVABOYA ODAYAR ILR Vol. XVIII Madras 309, the High Court of Judicature at Madras held thus:
"A purchaser bought in Court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently there was a partition decree and only some of these items fell to the share of the judgment-debtor.
Held, that the purchaser was entitled to only such of the items as are common to the sale certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate."
(5) In NANAK CHAND v. GANDU RAM AND ORS. AIR 1938 Lahore 360, the High Court of Lahore while explaining the scope of Section 43 of the Transfer of Property Act held as follows:
"where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of the sale but subsequent to sale has become entitled to such share, such person in equity should not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the Court sale because there can be no question of equities in the case of Court sale."
(6). NARAYAN GANESH VARDE v. DAUD TARAPORWALA AND ANR., , wherein the Bombay High Court explaining the scope of Section 64 of the Code of Civil Procedure held thus:
"An attachment does not create any interest in the property attached. It does not create any lien in favour of the attaching creditor. It only prevents alienation of the property on the part of the judgment-debtor, so that if the judgment-debtor alienates the property contrary to attachment, then the alienation becomes void as against all claims enforceable under the attachment under Section
64."
(7) VEDU SHIYLAL v. KALU UKHARDU ILR Vol.37 Bombay 692, wherein the Bombay High Court while explaining the scope of Section 56 of the Bombay Land Revenue Code and the position of the mortgagor in possession and also the forfeiture of land on account of failure to pay assessment held thus:
" In 1895, the defendants Nos. 1 and 2 mortgaged their lands to the plaintiff one of the conditions of the mortgage being that the mortgagors were to remain in possession of the land, and to pay the Government assessment. Default having occurred in payment of assessment, the Collector demanded payment first from mortgagors and then from the mortgagee. The latter expressed his willingness to pay, if he was placed into possession of the land. The Collector eventually forfeited the land in 1902; but shortly afterwards re-granted it to defendants Nos. 1 and 2 under Section 56 of the Bombay Land Revenue Code Bombay Act V of 1879, amended by Bombay Act VI of 1901) on a new tenure. The mortgagee (Plaintiff) next obtained a decree on his mortgage; and in execution of it attached the land. The attachment was, however, raised by the Revenue Authorities under Section 70 of the Code. The plaintiff sued for a declaration that the land was liable to be attached and sold in execution of his decree. The Court of first instance dismissed the suit on the ground that the plaint disclosed no cause of action. On appeal:-
Held, that the land was, under the operation of Section 56 of the Bombay Land Revenue Code, vested in defendants Nos. 1 and 2 free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff."
Sri Karanth also placed reliance on the Decision of the Allahabad High Court in RADHA BAI v. KAMOD SINGH AND ORS. ILR Vol. XXX Allahabad 38, regarding the effect of Section 43 of the Transfer of Property Act; the Decision of the Privy Council in FERNANDO v. GUNATILLAKA ILR 1921 PC 138 and the Decision of the Allahabad High Court in LALA NAND LAL v. SUNDER LAL AND OTHERS AIR (31) 1944 Allahabad 17. Thus contending, Sri Karanth submitted that a finding be given that by virtue of restoration of possession, Syed Basheer Ahmed became a fresh grant-holder without any lien, charge, encumbrance whatsoever which created earlier and by virtue of such restoration Syed Basheer Ahmed acquired right, title and interest over the lands and as such the sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed was a valid transfer and the plaintiff's vendor Padmanabha Karnath did not acquire any title to the property under the Sale Certificate issued in O.S.No. 146 and 1948 on the file of the High Court of Madras and in Execution Case No. 6 of 1953 on the file of the District Judge, Bangalore. Therefore, the Sale Deed dated 2.1.1956 (Ex.P.1) executed by Padmanabha Kamath in favour of the plaintiff was not a valid one. Consequently, the Rectification Deed dated 16.12.1957 (Ex.P.2). executed by Padmanabha Kamath in favour of the plaintiff also not a valid one. Thus, he submitted that the plaintiff did not acquire any right, title or interest on the lands in question.
9. As an answer to the above contentions of the learned Counsel for the appellant/defendant, Sri Raghavachar, learned Counsel for the plaintiff/respondent, submitted as follows:
Forfeiture of the lands belonged to Syed Basheer Ahmed by the Government had not resulted in extinguishment of his right over the property. Forfeiture was merely postponement of Syed Basheer Ahmed's right of ownership. He was at liberty to re-claim the lands by paying the land revenue. Though forfeiture took place earlier to purchasing the lands by Padmanabha Kamath in Court auction, but by restoration of the lands Padmanabha Kamath became the owner of the lands from the date he purchased the same in Court auction and his sale in favour of plaintiff a valid one. By the said sale plaintiff was put in possession of the lands and continued to be in possession. By restoration, the right of Syed Basheer Ahmed which was kept in abeyance by forfeiture reverted back to the original date and therefore Syed Basheer Ahmed deemed to have, right, title and interest over the lands on the date Padmanabha Kamath obtained a decree in the High Court of Madras against Syed Basheer Ahmed. By Court safe Padmanabha Kamath became absolute owner. Thus, purchase of the lands by Padmanabha Kamath and their sale to plaintiff was quite valid. According to Sri Raghavachar, Section 43 of the Transfer of Property Act, has no application to the case on hand. He also submitted that the transfer, if any, made by Syed Basheer Ahmed in favour of the defendant was not valid in law and the same not binding on the plaintiff. Moreover from the date of Exhibit P.1 (Sale deed in favour of the plaintiff) till 1961 it was the plaintiff who was in, possession and enjoyment of the property. Syed Basheer Ahmed was aware of this plaintiff's possession. But, with a view to defraud the plaintiff, Syed Basheer Ahmed entered into secret sale transactions with Bathulla Begum and Nazir Ahmed who in turn sold the lands to the defendant. On the basis of the illegal transaction the defendant attempted to assert her title to the property. According to Sri Raghavachar, Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code differ on the effect of restoration. He also submitted that even the Authorities relied upon by Sri Karanth on facts are not applicable to the case on hand. According to him, the Authorities applicable to the case are the following:
(1) BALAJI RAO alias BALAKRISHNA RAO v. SITHA-RAMAYYA XVII Mysore Chief Court Reports 76, 273, wherein it has been held thus:
"Neither the Mysore Land Revenue Code nor the Rules thereunder contemplate the purchase on behalf of Government of land which has been 'forfeited' by reason of non-payment of the land revenue.
A mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties."
(2) In NAGAPPA GOWDA AND OTHERS v. DODDAMANE GURUPADAPPA AND ANR.AIR 1954 Mysore 39, while dealing with the effect of restoration of forfeited land to the defaulter under Section 54 of the Mysore Land Revenue Code, this Court held thus:
"Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to 'Government Phada' in the year 1937 for non-payment of land revenue, whatever rights Sundarasastry acquired under his purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it was restored to Benavannagowda and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting 'holder' Benavannagowda does not wipe out all the earlier rights. It has also been held by this Court in '18 Mys. CCR 76 (Q) that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been 'forfeited' by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not unless it is folfowed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the Khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge."
(3). In BHOGARA BHARAMAPPA v. RUDRAPPA AND ORS. AIR 1955 Mysore 13, this Court while dealing with forfeiture under the Mysore Land Revenue Code held as follows:
"Under Section 54 it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that Section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenure, encumbrances and rights derived from the immediate defaulter or his predecessor-in-title.
... ... ...
A mere forfeiture while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid."
(4) AMOLAK BANECHAND AND OTHERS v. DHONDI VALAD KHANDU BHOSLE AND ANR ILR Vol.XXX Bombay 466, wherein while interpreting Sections 56 and 57 of the Bombay Land Revenue Code on the arrears of assessment, forfeiture by Government, mortgage, land in possession of the occupant, regrant by Government to the occupant, suit by mortgagee to recover possession, equities arising out of the conduct of the parties, the High Court of Bombay held as follows:
"Forfeiture ordinarily implies the loss of a legal right by reason of some breach of obligation.
When arrears of assessment are levied by sale, then Section 56 of the Land Revenue Code (Bom. Act V of 1879) in pursuance of an obvious policy, empowers the Collector to sell "freed from all tenures, incumbrances and rights created by the occupant.... or any of his predecessors-in-title or in anywise subsisting against such occupant." Should the Collector otherwise dispose of the occupancy, the Section affords no such protection, and the legal relations must be determined by reference to the ordinary law. So judged, the effect of a forfeiture and the subsequent acquisition of the forfeited property are subject to the control of equities arising out of the conduct of the parties."
(5) In the case of CHANGAPPA v. SATYAPALA RFA No.110 of 1970 - 1974(2) KLJ Sh.N.No. 300, a Division Bench of this Court while explaining the revenue forfeiture of land held as follows:
"A coffee estate of 46 acres 28 guntas belonging to the joint family of S was forfeited in 1932 for arrears of land revenue. In 1957 the forfeiture was annulled and the lands were restored to the Khata of S, on his paying the arrears of land revenue. S sold the lands to defts for discharging debts contracted for obtaining restoration of the lands. The sons of S (S being dead) sued for partition and possession and for mesne profits.
Held, (1) When the order of forfeiture was annulled and the Khata restored, the old title got revived for the benefit of all the members of the joint family, subject to equities, (i.e.) the liability to contribute their share of the amount paid for obtaining restoration."
Thus arguing Sri Raghavachar submitted that mere forfeiture does not necessarily extinguish rights and equities between private parties. According to him, after forfeiture it is the normal practice of the Government to restore the property to the occupant in the event of the arrears being paid. When arrears of revenue are paid, the land will be restored to the occupant and by such restoration the position of the occupant will be as that of his original position. According to him, forfeiture does not take away the earlier rights and equities that may be subsisting as between the private parties. He submitted that the plaintiff purchased the property for a valuable consideration and started cultivating the same. Whereas the defendant on the basis of the secret and illegal sale in her favour attempted to deny the plaintiff's title to the property. The conduct of the defendant was nothing but a resultant of fraud played by Syed Basheer Ahmed, the original owner. As such the finding shall be that Padmanabha Kamath had acquired through Court auction sale a valid title to the lands and the transfer made by him in favour of the plaintiff was a valid one. By such sale transaction dated 2.1.1956 (Ex.P.1) the plaintiff acquired right, title and interest over the lands in question. Thus the sale transaction between the defendant and her vendors or prede-cessors-in-title was neither valid nor binding on the plaintiff.
10. In order to appreciate the different stand taken by both sides it is proper to extract hereunder the following provisions of the 1888 Code and the Rules and also the Bombay Land Revenue Code and Section 43 of the Transfer of Property Act. Section 54 of the 1888 Code reads thus:
"54. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrears by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings."
Section 55 of the 1888 Code reads thus:
"55. It shall be lawful for the Deputy Commissioner, in the event of the forfeiture of a holding through any defaulter in payment or other failure occasioning such forfeiture under the last preceding Section or any law for the time being in force, to take immediate possession of the land embraced within such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 76 of the 1888 Code speaks about the occupant or holder liable to continue for all demands until the occupancy pr holding is duly relinquished or transferred. It reads thus:
"76. The registered occupant or the holder of alienated land shall continue liable for the land revenue due on the occupancy or alienated holding and for all other lawful demands of Government in respect of the same, until such time as the occupancy or alienated holding is relinquished or transferred, under any of the provisions of this Act, to the name of any other person; and the Deputy Commissioner shall not be bound in any case to recognize any person to whom any interest in any portion of an occupancy or alienated holding has been assigned, unless the transfer has been recorded in the revenue records in accordance with the foregoing provisions."
Chapter XI of the 1888 Code deals with the realisation of the land revenue and other revenue demands. Section 142 which comes under Chapter XI prescribes that it is the primary responsibility of the registered occupant to pay land revenue of unalienated land. It reads thus:
"142. The registered occupant shall be primarily responsible to Government for the land revenue of unalienated land, and the superior holder shall be primarily responsible to Government for the land revenue of alienated land.
On failure of the person primarily responsible to Government for the land revenue to pay the same according to the rules legally prescribed in that behalf, it may be recovered from the co-occupant of unalienated land or the co-sharer of alienated land, or in either case from the inferior holder or person in actual occupation of the land.
When the land revenue is recovered from any such occupant, co-sharer, inferior holder, or other person, he shall be allowed credit for all payments which he may have made to the registered occupant, or superior holder, or to his landlord, at or after the prescribed or usual times of such payments, and he shall be entitled to credit in account with the registered occupant or superior holder or with his landlord for the amount recovered from him."
Section 152 which regulates payment of land revenue reads thus:
"152. Land revenue, except when it is recovered under the provisions of the foregoing Sections 146 to 150, shall be payable at such times, in such instalments, to such persons and at such places as may, from time to time, be determined by the orders of Government."
Section 153 says who is the defaulter. It reads:
"153. Any sum not so paid becomes thereupon an arrear of land revenue; and the persons responsible for it, whether under the provisions of Section 142 or of any other Section, become defaulters."
Section 156 which speaks about the recovery of arrears reads thus:
"156. An arrear of land revenue may be recovered by the following processes:-
(a) by serving a written notice of demand on the defaulter under Section 158;
(b) by forfeiture of the occupancy or alienated holding in respect of which the arrear is due under Section 159;
(c) by distraint and sale of the defaulter's movable property under Section 160;
(d) by sale of the defaulter's immovable property under Section 161;
(e) by arrest and imprisonment of the defaulter under Section 163 and 164;
(f) in the case of alienated holdings consisting of entire villages, or shares of villages by attachment of the said villages or shares of villages under Sections 165 to 169,"
Section 159 reads as under;
"159. The Deputy Commissioner may declare the occupancy or alienated holding in respect of which an arrear of land revenue is due to be forfeited to Government, and sell or otherwise dispose of the same under the provisions of Section 54 and 55, and credit the proceeds, if any to the defaulter's accounts."
Section 161 is as under;
"161. The Deputy Commissioner may also cause the right, title and interest of the defaulter in any immovable property, other than the land on which the arrear is due, to be sold."
Rule 38 of the Land Revenue Rules empowers the Deputy Commissioner that in his discretion he may restore any forfeited occupancy or alienated holding at any time on payment of the arrear in respect of which the forfeiture was incurred together with all costs and charges lawfully due by the defaulter.
11. The relevant provisions of the Bombay Land Revenue Code, 1879, are Sections 56, 57 and 151. Section 56 read as under:
"56. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land or permanently fastened to anything attached to the land liable to forfeiture, whereupon the Collector may levy all sums in arrears by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules made in this behalf under Section 214, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by restoration to the defaulter, or by transfer to another person or otherwise howsoever, shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created in favour of any person other than the Government in respect of such occupancy or holding."
Section 57 of the Bombay Land Revenue Code reads thus:
"57. It shall be lawful for the Collector in the event of the forfeiture of a holding through any default in payment or other failure occasioning such forfeiture under the last Section or any law for the time being in force, to take immediate possession of such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 151 of the Bombay Land Revenue Code reads thus:
"151. The said processes may be employed for the recovery of arrears of former years as well as of the current year, but the preferences given by Sections 137 and 138 shall apply only to demands for the current year:
Provided that any process commenced in the current year shall be entitled to the said preference, notwithstanding that it may not be fully executed within that year."
12. Section 43 of the Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. It reads thus:
"43. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveabte property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists.
Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
Section 6(i) of the Transfer of Property Act reads as under:
"6. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:
... ...
(i) Nothing in this Section shall be deemed to authorize a tenant having an untransferrable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee."
13. Section 64 of the Code of Civil Procedure which prohibits private plienation of property after attachment reads thus:
"Section 64. Private alienation of property after attachment to be void:-
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.."
14. Though at first sight Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code look as identical, on a close scrutiny of the above 2 Sections it can be seen that in Section 54 of the 1888 Code a departure has been made, viz., that on forfeiture of land its disposal whether by sale or transfer to another person or otherwise howsoever De deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder except by restoration to the defaulter which means if there is any restoration of the land to the defaulter be deemed to be freed from all tenures, rights, incumbrances and equities thereto created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder will revive. Whereas Section 56 of the Bombay Land Revenue Code the word 'except' is not there. From this it is clear that Legislature thought all charges, encumbrances, etc. on the property which were subsisting at the time of forfeiture will revive in case such forfeited lands are restored to the original occupant.
15. The Authorities on which reliance was placed by Sri Karanth are those which considered the scope of Section 56 of the Bombay Land Revenue Code or the effect of Section 43 of the Transfer of Property Act and not on Section 54 of the 1888 Code. On comparison, the Authorities relied upon by Sri Karanth have no application to the case on hand so also Section 43 of the Transfer of Property Act. On the other hand, the Authorities on which reliance was placed by Sri Raghavachar in all fours are applicable to the case on hand. Where Section 54 of the 1888 Code was an issue for consideration, this Court found that forfeiture does not extinguish the right and equity between private parties and also held that by restoration the properties have been reverted back to the original position. Apart from this, the evidence available in the case goes to show that subsequent to Court auction Padmanabha Kamath sold the land to the plaintiff who continued in possession till 1961. There is nothing to show that during this period either Syed Basheer Ahmed or the Government was in possession of the lands. Further, there is nothing to show that after the arrears were paid and before the restoration a request was made to the Court by auction purchaser that he is relinquishing his rights over the lands. The possession of the plaintiff was also not an illegal one, as her vendor was put in possession of the lands at the instance of the executing Court. The Judgment debtor did not choose to challenge the same. Thus, the plaintiff's vendor was in lawful possession at the time of the sale deed in favour of the plaintiff (Exhibit P.1). He (Plaintiff's vendor-Padmanabha Kamath) had absolute right to transfer the lands which he transferred to the plaintiff under the sale deed, Exhibit P.1. Hence, restoration of land in favour of the Judgment-debtor Syed Basheer Ahmed - did not make him a fresh grantee. But, on the other hand he was placed in the original position, viz., position in which he was the owner on the date of forfeiture. As an owner he was entitled to be in possession. When he suffered a decree and his properties were brought to sale to satisfy the decree, the Judgment-debtor (Syed Basheer Ahmed) did not choose to challenge it. Hence, the purchase by Padmanabha Kamath a valid one. The purchase of the lands by Padmanabha Kamath in Court auction and the sale by him to the plaintiff were all earlier to the sale transactions that took place between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and the subsequent sale by Bathulla Begum and Nazir Ahmed to the defendant on 1.4.1966. On the date of sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed whatever rights Syed Basheer Ahmed had on the lands had already been conferred on Padmanabha Kamath by the Court auction sale and such rights in turn were transferred by Padmanabha Kamath in favour of the plaintiff under the sale deed Exhibit P.1. Hence, the sale transactions between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and between Bathulla Begum and Nazir Ahmed and the defendant were inoperative and not binding on the plaintiff. The possession of the defendant, if any, was also illegal and unauthorised.
16. Hence, my finding as to the legal effect of the order of the restoration of the land in favour of Syed Basheer Ahmed is that it revived his ownership and whatever right, title and interest he had over the lands as on the date of forfeiture of the said lands reverted back. By purchasing the said lands in Court auction, Padmanabha Kamath became an absolute owner of the lands. Transfer of the said lands by him to the plaintiff a valid one. Thus the plaintiff acquired right of ownership over the lands. Whereas, the sales by Syed Basheer Ahmed to Bathulla Begum and Nazir Ahmed from whom the defendant purchased the lands in question were neither valid nor binding on the plaintiff, as prior to these sales whatever right, title and interest Syed Basheer Ahmed had over these lands in fact had extinguished and had vested in Padmanabha Kamath and he in turn had conveyed the same to the plaintiff by way of sale.
Equivalent citations: ILR 1994 KAR 662
Author: Hanumanthappa
Bench: Hanumanthappa
JUDGMENT
Hanumanthappa, J.
1. Pursuant to the Reference made by the Hon'ble Supreme Court by its Order dated 31.10.1991 in Civil Appeal No. 624 of 1973, finding of this Court is given on the Point, viz., "legal effect of the order of the restoration of the land in favour of Bashir Ahmed".
2.In order to see that both sides are given sufficient opportunity to establish their case, this case was adjourned many times as requested by both sides. Thus the matter was heard on several dates of hearing. On the Point involved both sides made me to go through various documents produced in the case, important Sections of the Mysore Land Revenue Code and the Bombay Land Revenue Code, Section 43 of the Transfer of Property Act and the Authorities relied (sic) by both sides in support of their rival contentions.
3. To give a finding on the Point of Reference made by the Hon'ble Supreme Court, it is proper to mention a few facts, as their narration will avoid the confusion which had set in.
Originally one Kaushik was the owner of the lands in dispute. He sold the said lands to one Syed Basheer Ahmed in the year 1942. The said Syed Basheer Ahmed did not pay the land revenue in respect of the lands in question for some time. As Syed Basheer Ahmed became defaulter in payment of land revenue, the State exercising its power under the provisions of the Mysore Land Revenue Code, 1888 (hereinafter referred to as the 1888 Code) forfeited the said lands to the Government during the year 1948-49. As there were no bidder, in view of Section 55 of the 1888 Code the Government itself purchased the said lands in Survey Nos. 29 and 30 of Sonnamaranahalli Village and Survey Nos. 35 and 40 of Gullia Nandi Gunta Village, Thubagere Hobli, Doddaballapur Taluk, Bangalore District. Earlier to this, there was some dispute between Padmanabha Kamath and Syed Basheer Ahmed. Padmanabha Kamath filed a suit against Syed Basheer Ahmed in the High Court of Madras in O.S.No. 148 of 1946. The said suit was decreed in favour of Padmanabha Kamath. The decree was transferred to the District Court, Bangalore, and was put in execution in Execution Case No. 6 of 1953. The Executing Court brought the lands for sale. On 3.9.1953 Padmanabha Kamath purchased the said lands as he was the highest bidder. On 7.6.1954 the sale in favour of Padmanabha Kamath was confirmed. On 16.3.1955 the Sale Certificate at Exhibit P.3 in respect of the lands in question was issued to Padmanabha Kamath. On 2.1.1965 in Misc. Case No. 127 of 1955 possession of the lands in question was handed over to the auction-purchaser, Padmanabha Kamath. Upto this date by virtue of the forfeiture of the land by the Government in the Revenue records the nature of possession was described as 'Government Phada' under the Kathedar column. On 2.1.1956 Padmanabha Kamath sold the lands under Exhibit P.1 to Smt. Gomathi Bai G. Kamath, w/o Govinda Kamath, resident of Bombay, for valuable consideration. From the date of purchase till 1960-61 the name of the plaintiff, i.e., Smt. Gomathi Bai G. Kamath, was shown in the Exhibits at Exhibit P-8 series as the, person in possession of the property either authorised or unauthorised. The plaintiff contended that during the last week of July, 1967, when the plaintiff's husband went to the lands in question, he found that the defendant, i.e., Smt. Zahera Banu Kareem, was cultivating the lands, viz., S.No. 29 and 30 of Sonnamarnahalli. This action of the defendant was objected by the plaintiff by issuing a legal notice and subsequently the plaintiff filed a suit, O.S. No. 31 of 1967, in the Court of the Principal Rural Civil Judge, Bangalore, for declaration and possession of the lands in dispute and for other reliefs, viz., mesne profits, etc. In the plaint the plaintiff contended that (i) Padmanabha Kamath by virtue of purchasing the lands in Court auction perfected his title to the lands and as she had purchased the lands from Padmanabha Kamath her title to the lands was a valid one; (ii) the right, title and interest over the lands in question were transferred to the plaintiff by such sale as per the Sale Deed dated 2.1.1956 at Exhibit P. 1.
4. In the suit the defendant filed her written statement denying the claim of the plaintiff. She contended in the Written Statement as follows:
The lands were resumed to the Government for non-payment of land revenue in the year 1948-49. The lands were shown as 'Government Phada' in the revenue records. Till 1961 the Government continued to have title over the lands. The lands were purchased by Padmanabha Kamath in Court auction in Ex.Case No. 6 of 1952-53 in execution of the decree in O.S.No. 148 of 1946 obtained by him against Syed Basheer Ahmed. As the Government had resumed the lands in question, Padmanabha Kamath did not acquire any right over the lands by such purchase. In the year 1961 after receiving the arrears of land revenue due to the Government, the lands were restored to Syed Basheer Ahmed on 22.6.1961 and in turn Syed Basheer Ahmed divided the lands and sold to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus, by restoration of the lands in question to Syed Basheer Ahmed on 22.6.1961 the lands became free from all encumbrances. On 1.4.1966 the defendant purchased the lands in question from the said Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus contending the defendant requested that the suit be dismissed as not maintainable.
5. On the basis of the Pleadings the trial Court framed the following issues:
"1. Is the Court sale in Ex.6/52-53 referred to in the plaint true and did it confer title to the plaintiff's vendor ?
2. Did the plaintiff's vendor take possession of the property in Misc. No. 127/55?
3. Has the plaintiff been the owner of the schedule property by virtue of the sale deed dated 2.1.1956 and rectification document dated 16.12.1957?
4. Was the plaintiff in possession of the schedule property ?
5. Where the suit lands resumed by the Government in the year 1948-49 as pleaded and whether Syed Basheer Ahmed, the Judgment debtor in Ex.No. 6/52-53 had no right, title or interest in the schedule property on the date of Court sale ?
6. Were the suit lands restored to him in 1961 and did he become the owner of the property in 1961 ? If so, what will be the effect of restoration of the suit land in his favour ?
7. Had the plaintiff made improvements in the land and has the defendant damaged the well, motor, etc. and is the plaintiff entitled to damages ? If so, to what amount ?
8. Is plaintiff entitled to mesne profits ? If so, to what amount?
9. To what relief, the parties are entitled ?"
In support of their case both parties produced certain documents. On the plaintiff's side the following documents were produced :
1. Registered sale deed dated 2.1.1956 in favour of the plaintiff marked with letter 'A';
2. Registered Rectification deed dated 16.12.1957 marked with letter 'B';
3. Sale certificate issued by the Court of the District Judge, Bangalore, dated 7.6.1954 marked with letter 'C';
4. Two encumbrance Certificates in respect of the suit schedule lands covering the period from 25.11.1952 to 24.7.1967 marked with letters 'D' and 'E';
5. Certified copies of Extracts for the entries made in the Index of lands and Record of Rights marked 'F-Series' (Four in number);
6. Copy of the legal notice dated 27.7.67 with postal acknowledgment marked 'G' and 'G-1'; and
7. Copy of Power of Attorney of the plaintiff.
On the defendant's side the following documents were produced:
1. Sale deed dated 1.4.66 executed by S, Nazir Ahmed;
2. Sale deed dated 1.4.66 executed by Rahantunnissa in favour of defendant;
3. Encumbrance certificate;
4. Bills issued by the Mysore State Electricity Board;
5. Cash bill of M. Srinivascharlu and Co., and
6. Guarantee card.
Before the trial Court the defendant was placed exparte. Hence, the trial Court accepting the contentions raised by the plaintiff decreed the suit. Aggrieved by the same, the defendant preferred an appeal in R.A.No. 2 of 1970 on the file of the Principal District Judge, Bangalore. Before the learned District Judge many grounds were urged. However, the relevant ground for the purpose of giving a finding on the Reference made is as follows:
"That even on merits the decree and judgment of the lower Court was unsustainable because that the plaintiff had not derived any right, title or interest under the sale deed because her vendor had not derived any right, title or interest under the Court auction sale because the judgment debtor had not any subsisting right in the property on the date of the auction."
After hearing both sides, the learned District Judge formulated several Points for Determination out of which the following Points are relevant for the present purpose:
1. "Whether the plaintiff had acquired right title, and interest under the sale deed dated 2.1.1956 under Exs.P.1 and P-2?"
2. "Whether the plaintiff was in possession and enjoyment of the suit schedule lands as asserted by her?"
3. "Whether the defendant has acquired right, title and interest in the suit schedule properties under her sale deed dated 22.6.62?"
4. "Whether she is in possession and enjoyment of the suit lands?"
The learned District Judge after considering the entire material produced found thus:
"Documents Ex.P.8 series and Ex.P.9 series unambiguously show that in 1951 the land was registered in the name of the Government, and by virtue of such transfer the original owner Syed Basheer Ahmed must be deemed to have been divested of his rights except his right to reclaim the land on payment of land revenue. When the sale was held the auction purchaser at the Court sale must be deemed to have purchased such right, title and interest as the Judgment debtor had in the said lands. Applying this standard two inferences can be drawn viz., (i) the rights of the Judgment debtor in the land were extinguished in 1951 when the Government resumed the lands subject only to the right of the pattadar to reclaim the land on payment of arrears of land revenue and (ii) that when the lands were sold by the Court in auction in execution of the decree the auction purchaser, namely, the vendor of the plaintiff derived all such rights as were with the judgment-debtor. The judgment debtor admittedly had the right to reclaim the land on payment of arrears of land revenue. Therefore, Syed Basheer Ahmed the judgment debtor had no right, title or interest after the Court sale. His rights were completely extinguished and new rights were created in favour of the auction purchaser. He and he alone could have reclaimed the land."
Thus observing the learned District Judge held that the auction purchaser perfected his title to the property subject to his payment of arrears of land revenue if and when the Government thought fit to disturb his possession or the purchaser himself thought fit to prefer his title. Making a reference to Exhibit P.4 -- the Delivery Receipt, Exhibit P-7 - the Treasury Challan dated 16.6.1959 and Exhibit P-6 -the notice dated 11.7.1961 which came into existence prior to the dispute between the parties the learned District Judge held that they conclusively establish that the plaintiff was in possession of the said lands arid cultivated the same. Thus a categorical finding was given by the learned District Judge that the plaintiff was in possession and enjoyment of the lands in question between 1956 and 1961. Whereas the suit was filed in the year 1967 and even if the defendant was in possession it will not confer any right, title and interest on the defendants. The learned District Judge also held that when the Judgment-debtor preferred the appeal challenging the exparte decree, an interim order of stpy of execution was granted subject to the condition that the judgment-debtor should furnish security for due performance of the decree. But the same was not complied with. As such the learned District Judge found that the decree obtained by Padmanabha Kamath was executed and the plaintiff was put in possession of the property. Thus holding the learned District Judge by his judgment and decree dated 14.12.1970 dismissed the appeal.
6. In R.S.A, No. 964 of 1971 the judgments and decrees of the Courts below were challenged. But, this Court rejected this Appeal at the stage of admission itself as there was no ground to interfere, by the order dated 26.10.1971. An Appeal in Civil Appeal No. 624 of 1971 has been preferred before the Supreme Court against the Order of this Court rejecting the Regular Second Appeal. In the said Appeal the Supreme Court requires a finding from this Court as to the legal effect of the order of restoration of the land in favour of Basheer Ahmed.
7. Both sides in addition to putting forth their arguments took me through the documents referred to above and the orders made.
8. Sri. Karanth, learned Counsel for the appellant/defendant, contended as follows:
The plaintiff's vendor, viz., Padmanabha Kamath, had no title over the lands, as, on the date of Court auction the Judgment-debtor/Basheer Ahmed had no right over the lands and the lands were forfeited and resumed to the Government. Subsequently, the lands came to be shown as 'Government Phada' in the Revenue records. Subsequent to the Court's auction sale and the plaintiff's vendor purchasing the lands in question, the Government restored the lands to Syed Basheer Ahmed/Judgment-debtor on receipt of the arrears of land revenue from him. By such restoration, the land became a free grant in favour of Syed Basheer Ahmed and the same was exclusively for his benefits. By virtue of such restoration Syed Basheer Ahmed acquired a title over the property and also a right to alienate the lands. Accordingly he sold the lands to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed from whom the appellant/defendant purchased the same. By virtue of such purchase the defendant perfected her title to the properties. Though the decree-holder/Padmanabha Kamath who was the plaintiff's vendor had initiated proceedings against Syed Basheer Ahmed earlier to forfeiture of the lands by the Government, the forfeiture took place earlier to Padmanabha Kamath obtaining a decree against Syed Basheer Ahmed and the decree-holder/Padmanabha Kamath purchased the lands in Execution Case No. 6 of 1952-53 on 3.9.1953. It was further contended by the learned Counsel for the appellant that in view of Section 54 of the 1888 Code whatever rights Basheer Ahmed had were obliterated by virtue of forfeiture of the lands by the Government. It was also contended that the question of pleading equity by the plaintiff does not arise in this case. Sri Karanth, learned Counsel for the appellant/defendant, while reiterating the above contentions raised before the Courts below submitted that in view of Section 54 of 1888 Code the decree-holder did not acquire any right, title or interest over the property and as such the transfer of the lands made by him (Padmanabha Kamath) in favour of the plaintiff was not a valid one as no title was passed on to the plaintiff. When there was a forfeiture and resumption it shall be presumed that whatever right the earlier occupant had was extinguished and by virtue of restoration of lands such occupant became a holder of fresh grant free from all encumbrances. According to him, Section 43 of the Transfer of Property Act also disentitles the plaintiff and her vendor in setting up any claim over the lands. In support of his contentions Sri. Karanth placed reliance on the following Authorities:
(1) BATCHU RAMAYYA v. DHARA SATCHI 20 Madras L.J.635, wherein the High Court of Judicature at Madras, while interpreting the scope of Section 43 of the Transfer of Property Act and alienation of service inam lands held that Section 43 of the Transfer of Property Act cannot be invoked in favour of alienee of the inam land whose alienation is wholly void under the law.
(2) PRASANNA KUMAR MOOKERJEE v. SRIKANTHA ROUT ILR Vol XL Calcutta 173, the Calcutta High Court, while considering non-payment or discontinuance of payment of rent, acquiescence, etc. held that non-payment of rent or discontinuance of payment of rent did not by itself constitute adverse possession. The relevant observations in the said Decisions regarding the scope of Section 43 and the estoppel are as follows:
"It need not be disputed that if a grantor, who has no title or a defective title or an estate less than what he assumes to grant conveys with warranty or covenants of like import, and subsequently, acquires the title or estate which he purports to convey, or, perfects his title, such after-acquired or perfected title will enure to the grantee as to his benefit by way of estoppel. .. ..
In case of a voluntary private alienation, the deed, either expressly or by necessary implication, shows that the grantor intended to convey and that the grantee expected to become vested with an estate of a particular kind: the deed may consequently found an estoppel, although it contains no technical covenents. .. ..
The case of an execution sale, however, stands on an obviously different footing. The decree-holder does not guarantee the title of the judgment-debtor; the intending purchaser knows that under the law he can acquire nothing beyond the right, title and interest of the judgment-debtor.
.. ..
It was held that the extent of an execution raises an estoppel as much as in the case of conveyance, the contrary view, namely, that an execution sale of property not belonging to the judgment-debtor does not estop him from asserting against the purchaser title subsequently acquired, has been maintained in cases of recognised authority."
(3) In ABDUL REHMAN IBRAHIM v. VINAYAK JAYAVANTRAO DESHMUKH 29 Bombay L.R. 1056, while explaining forfeiture and re-sale of the mortgaged property, the High Court of Bombay held as follows:
"The right to redeem was lost owing to the forfeiture of the land under the original Section 56 of the Bombay Land Revenue Code; and that before the plaintiff could succeed he must show that the forfeiture and the revenue sale were due to the default of the mortgagee in not paying the assessment and that the income of the land was sufficient to pay the assessment or that in some way the mortgagor had put the mortgagee in funds wherewith to pay the assessment."
(4) SABAPATHI PILLAY v. THANDAVABOYA ODAYAR ILR Vol. XVIII Madras 309, the High Court of Judicature at Madras held thus:
"A purchaser bought in Court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently there was a partition decree and only some of these items fell to the share of the judgment-debtor.
Held, that the purchaser was entitled to only such of the items as are common to the sale certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate."
(5) In NANAK CHAND v. GANDU RAM AND ORS. AIR 1938 Lahore 360, the High Court of Lahore while explaining the scope of Section 43 of the Transfer of Property Act held as follows:
"where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of the sale but subsequent to sale has become entitled to such share, such person in equity should not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the Court sale because there can be no question of equities in the case of Court sale."
(6). NARAYAN GANESH VARDE v. DAUD TARAPORWALA AND ANR., , wherein the Bombay High Court explaining the scope of Section 64 of the Code of Civil Procedure held thus:
"An attachment does not create any interest in the property attached. It does not create any lien in favour of the attaching creditor. It only prevents alienation of the property on the part of the judgment-debtor, so that if the judgment-debtor alienates the property contrary to attachment, then the alienation becomes void as against all claims enforceable under the attachment under Section
64."
(7) VEDU SHIYLAL v. KALU UKHARDU ILR Vol.37 Bombay 692, wherein the Bombay High Court while explaining the scope of Section 56 of the Bombay Land Revenue Code and the position of the mortgagor in possession and also the forfeiture of land on account of failure to pay assessment held thus:
" In 1895, the defendants Nos. 1 and 2 mortgaged their lands to the plaintiff one of the conditions of the mortgage being that the mortgagors were to remain in possession of the land, and to pay the Government assessment. Default having occurred in payment of assessment, the Collector demanded payment first from mortgagors and then from the mortgagee. The latter expressed his willingness to pay, if he was placed into possession of the land. The Collector eventually forfeited the land in 1902; but shortly afterwards re-granted it to defendants Nos. 1 and 2 under Section 56 of the Bombay Land Revenue Code Bombay Act V of 1879, amended by Bombay Act VI of 1901) on a new tenure. The mortgagee (Plaintiff) next obtained a decree on his mortgage; and in execution of it attached the land. The attachment was, however, raised by the Revenue Authorities under Section 70 of the Code. The plaintiff sued for a declaration that the land was liable to be attached and sold in execution of his decree. The Court of first instance dismissed the suit on the ground that the plaint disclosed no cause of action. On appeal:-
Held, that the land was, under the operation of Section 56 of the Bombay Land Revenue Code, vested in defendants Nos. 1 and 2 free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff."
Sri Karanth also placed reliance on the Decision of the Allahabad High Court in RADHA BAI v. KAMOD SINGH AND ORS. ILR Vol. XXX Allahabad 38, regarding the effect of Section 43 of the Transfer of Property Act; the Decision of the Privy Council in FERNANDO v. GUNATILLAKA ILR 1921 PC 138 and the Decision of the Allahabad High Court in LALA NAND LAL v. SUNDER LAL AND OTHERS AIR (31) 1944 Allahabad 17. Thus contending, Sri Karanth submitted that a finding be given that by virtue of restoration of possession, Syed Basheer Ahmed became a fresh grant-holder without any lien, charge, encumbrance whatsoever which created earlier and by virtue of such restoration Syed Basheer Ahmed acquired right, title and interest over the lands and as such the sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed was a valid transfer and the plaintiff's vendor Padmanabha Karnath did not acquire any title to the property under the Sale Certificate issued in O.S.No. 146 and 1948 on the file of the High Court of Madras and in Execution Case No. 6 of 1953 on the file of the District Judge, Bangalore. Therefore, the Sale Deed dated 2.1.1956 (Ex.P.1) executed by Padmanabha Kamath in favour of the plaintiff was not a valid one. Consequently, the Rectification Deed dated 16.12.1957 (Ex.P.2). executed by Padmanabha Kamath in favour of the plaintiff also not a valid one. Thus, he submitted that the plaintiff did not acquire any right, title or interest on the lands in question.
9. As an answer to the above contentions of the learned Counsel for the appellant/defendant, Sri Raghavachar, learned Counsel for the plaintiff/respondent, submitted as follows:
Forfeiture of the lands belonged to Syed Basheer Ahmed by the Government had not resulted in extinguishment of his right over the property. Forfeiture was merely postponement of Syed Basheer Ahmed's right of ownership. He was at liberty to re-claim the lands by paying the land revenue. Though forfeiture took place earlier to purchasing the lands by Padmanabha Kamath in Court auction, but by restoration of the lands Padmanabha Kamath became the owner of the lands from the date he purchased the same in Court auction and his sale in favour of plaintiff a valid one. By the said sale plaintiff was put in possession of the lands and continued to be in possession. By restoration, the right of Syed Basheer Ahmed which was kept in abeyance by forfeiture reverted back to the original date and therefore Syed Basheer Ahmed deemed to have, right, title and interest over the lands on the date Padmanabha Kamath obtained a decree in the High Court of Madras against Syed Basheer Ahmed. By Court safe Padmanabha Kamath became absolute owner. Thus, purchase of the lands by Padmanabha Kamath and their sale to plaintiff was quite valid. According to Sri Raghavachar, Section 43 of the Transfer of Property Act, has no application to the case on hand. He also submitted that the transfer, if any, made by Syed Basheer Ahmed in favour of the defendant was not valid in law and the same not binding on the plaintiff. Moreover from the date of Exhibit P.1 (Sale deed in favour of the plaintiff) till 1961 it was the plaintiff who was in, possession and enjoyment of the property. Syed Basheer Ahmed was aware of this plaintiff's possession. But, with a view to defraud the plaintiff, Syed Basheer Ahmed entered into secret sale transactions with Bathulla Begum and Nazir Ahmed who in turn sold the lands to the defendant. On the basis of the illegal transaction the defendant attempted to assert her title to the property. According to Sri Raghavachar, Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code differ on the effect of restoration. He also submitted that even the Authorities relied upon by Sri Karanth on facts are not applicable to the case on hand. According to him, the Authorities applicable to the case are the following:
(1) BALAJI RAO alias BALAKRISHNA RAO v. SITHA-RAMAYYA XVII Mysore Chief Court Reports 76, 273, wherein it has been held thus:
"Neither the Mysore Land Revenue Code nor the Rules thereunder contemplate the purchase on behalf of Government of land which has been 'forfeited' by reason of non-payment of the land revenue.
A mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties."
(2) In NAGAPPA GOWDA AND OTHERS v. DODDAMANE GURUPADAPPA AND ANR.AIR 1954 Mysore 39, while dealing with the effect of restoration of forfeited land to the defaulter under Section 54 of the Mysore Land Revenue Code, this Court held thus:
"Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to 'Government Phada' in the year 1937 for non-payment of land revenue, whatever rights Sundarasastry acquired under his purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it was restored to Benavannagowda and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting 'holder' Benavannagowda does not wipe out all the earlier rights. It has also been held by this Court in '18 Mys. CCR 76 (Q) that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been 'forfeited' by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not unless it is folfowed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the Khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge."
(3). In BHOGARA BHARAMAPPA v. RUDRAPPA AND ORS. AIR 1955 Mysore 13, this Court while dealing with forfeiture under the Mysore Land Revenue Code held as follows:
"Under Section 54 it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that Section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenure, encumbrances and rights derived from the immediate defaulter or his predecessor-in-title.
... ... ...
A mere forfeiture while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid."
(4) AMOLAK BANECHAND AND OTHERS v. DHONDI VALAD KHANDU BHOSLE AND ANR ILR Vol.XXX Bombay 466, wherein while interpreting Sections 56 and 57 of the Bombay Land Revenue Code on the arrears of assessment, forfeiture by Government, mortgage, land in possession of the occupant, regrant by Government to the occupant, suit by mortgagee to recover possession, equities arising out of the conduct of the parties, the High Court of Bombay held as follows:
"Forfeiture ordinarily implies the loss of a legal right by reason of some breach of obligation.
When arrears of assessment are levied by sale, then Section 56 of the Land Revenue Code (Bom. Act V of 1879) in pursuance of an obvious policy, empowers the Collector to sell "freed from all tenures, incumbrances and rights created by the occupant.... or any of his predecessors-in-title or in anywise subsisting against such occupant." Should the Collector otherwise dispose of the occupancy, the Section affords no such protection, and the legal relations must be determined by reference to the ordinary law. So judged, the effect of a forfeiture and the subsequent acquisition of the forfeited property are subject to the control of equities arising out of the conduct of the parties."
(5) In the case of CHANGAPPA v. SATYAPALA RFA No.110 of 1970 - 1974(2) KLJ Sh.N.No. 300, a Division Bench of this Court while explaining the revenue forfeiture of land held as follows:
"A coffee estate of 46 acres 28 guntas belonging to the joint family of S was forfeited in 1932 for arrears of land revenue. In 1957 the forfeiture was annulled and the lands were restored to the Khata of S, on his paying the arrears of land revenue. S sold the lands to defts for discharging debts contracted for obtaining restoration of the lands. The sons of S (S being dead) sued for partition and possession and for mesne profits.
Held, (1) When the order of forfeiture was annulled and the Khata restored, the old title got revived for the benefit of all the members of the joint family, subject to equities, (i.e.) the liability to contribute their share of the amount paid for obtaining restoration."
Thus arguing Sri Raghavachar submitted that mere forfeiture does not necessarily extinguish rights and equities between private parties. According to him, after forfeiture it is the normal practice of the Government to restore the property to the occupant in the event of the arrears being paid. When arrears of revenue are paid, the land will be restored to the occupant and by such restoration the position of the occupant will be as that of his original position. According to him, forfeiture does not take away the earlier rights and equities that may be subsisting as between the private parties. He submitted that the plaintiff purchased the property for a valuable consideration and started cultivating the same. Whereas the defendant on the basis of the secret and illegal sale in her favour attempted to deny the plaintiff's title to the property. The conduct of the defendant was nothing but a resultant of fraud played by Syed Basheer Ahmed, the original owner. As such the finding shall be that Padmanabha Kamath had acquired through Court auction sale a valid title to the lands and the transfer made by him in favour of the plaintiff was a valid one. By such sale transaction dated 2.1.1956 (Ex.P.1) the plaintiff acquired right, title and interest over the lands in question. Thus the sale transaction between the defendant and her vendors or prede-cessors-in-title was neither valid nor binding on the plaintiff.
10. In order to appreciate the different stand taken by both sides it is proper to extract hereunder the following provisions of the 1888 Code and the Rules and also the Bombay Land Revenue Code and Section 43 of the Transfer of Property Act. Section 54 of the 1888 Code reads thus:
"54. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrears by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings."
Section 55 of the 1888 Code reads thus:
"55. It shall be lawful for the Deputy Commissioner, in the event of the forfeiture of a holding through any defaulter in payment or other failure occasioning such forfeiture under the last preceding Section or any law for the time being in force, to take immediate possession of the land embraced within such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 76 of the 1888 Code speaks about the occupant or holder liable to continue for all demands until the occupancy pr holding is duly relinquished or transferred. It reads thus:
"76. The registered occupant or the holder of alienated land shall continue liable for the land revenue due on the occupancy or alienated holding and for all other lawful demands of Government in respect of the same, until such time as the occupancy or alienated holding is relinquished or transferred, under any of the provisions of this Act, to the name of any other person; and the Deputy Commissioner shall not be bound in any case to recognize any person to whom any interest in any portion of an occupancy or alienated holding has been assigned, unless the transfer has been recorded in the revenue records in accordance with the foregoing provisions."
Chapter XI of the 1888 Code deals with the realisation of the land revenue and other revenue demands. Section 142 which comes under Chapter XI prescribes that it is the primary responsibility of the registered occupant to pay land revenue of unalienated land. It reads thus:
"142. The registered occupant shall be primarily responsible to Government for the land revenue of unalienated land, and the superior holder shall be primarily responsible to Government for the land revenue of alienated land.
On failure of the person primarily responsible to Government for the land revenue to pay the same according to the rules legally prescribed in that behalf, it may be recovered from the co-occupant of unalienated land or the co-sharer of alienated land, or in either case from the inferior holder or person in actual occupation of the land.
When the land revenue is recovered from any such occupant, co-sharer, inferior holder, or other person, he shall be allowed credit for all payments which he may have made to the registered occupant, or superior holder, or to his landlord, at or after the prescribed or usual times of such payments, and he shall be entitled to credit in account with the registered occupant or superior holder or with his landlord for the amount recovered from him."
Section 152 which regulates payment of land revenue reads thus:
"152. Land revenue, except when it is recovered under the provisions of the foregoing Sections 146 to 150, shall be payable at such times, in such instalments, to such persons and at such places as may, from time to time, be determined by the orders of Government."
Section 153 says who is the defaulter. It reads:
"153. Any sum not so paid becomes thereupon an arrear of land revenue; and the persons responsible for it, whether under the provisions of Section 142 or of any other Section, become defaulters."
Section 156 which speaks about the recovery of arrears reads thus:
"156. An arrear of land revenue may be recovered by the following processes:-
(a) by serving a written notice of demand on the defaulter under Section 158;
(b) by forfeiture of the occupancy or alienated holding in respect of which the arrear is due under Section 159;
(c) by distraint and sale of the defaulter's movable property under Section 160;
(d) by sale of the defaulter's immovable property under Section 161;
(e) by arrest and imprisonment of the defaulter under Section 163 and 164;
(f) in the case of alienated holdings consisting of entire villages, or shares of villages by attachment of the said villages or shares of villages under Sections 165 to 169,"
Section 159 reads as under;
"159. The Deputy Commissioner may declare the occupancy or alienated holding in respect of which an arrear of land revenue is due to be forfeited to Government, and sell or otherwise dispose of the same under the provisions of Section 54 and 55, and credit the proceeds, if any to the defaulter's accounts."
Section 161 is as under;
"161. The Deputy Commissioner may also cause the right, title and interest of the defaulter in any immovable property, other than the land on which the arrear is due, to be sold."
Rule 38 of the Land Revenue Rules empowers the Deputy Commissioner that in his discretion he may restore any forfeited occupancy or alienated holding at any time on payment of the arrear in respect of which the forfeiture was incurred together with all costs and charges lawfully due by the defaulter.
11. The relevant provisions of the Bombay Land Revenue Code, 1879, are Sections 56, 57 and 151. Section 56 read as under:
"56. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land or permanently fastened to anything attached to the land liable to forfeiture, whereupon the Collector may levy all sums in arrears by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules made in this behalf under Section 214, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by restoration to the defaulter, or by transfer to another person or otherwise howsoever, shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created in favour of any person other than the Government in respect of such occupancy or holding."
Section 57 of the Bombay Land Revenue Code reads thus:
"57. It shall be lawful for the Collector in the event of the forfeiture of a holding through any default in payment or other failure occasioning such forfeiture under the last Section or any law for the time being in force, to take immediate possession of such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 151 of the Bombay Land Revenue Code reads thus:
"151. The said processes may be employed for the recovery of arrears of former years as well as of the current year, but the preferences given by Sections 137 and 138 shall apply only to demands for the current year:
Provided that any process commenced in the current year shall be entitled to the said preference, notwithstanding that it may not be fully executed within that year."
12. Section 43 of the Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. It reads thus:
"43. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveabte property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists.
Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
Section 6(i) of the Transfer of Property Act reads as under:
"6. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:
... ...
(i) Nothing in this Section shall be deemed to authorize a tenant having an untransferrable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee."
13. Section 64 of the Code of Civil Procedure which prohibits private plienation of property after attachment reads thus:
"Section 64. Private alienation of property after attachment to be void:-
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.."
14. Though at first sight Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code look as identical, on a close scrutiny of the above 2 Sections it can be seen that in Section 54 of the 1888 Code a departure has been made, viz., that on forfeiture of land its disposal whether by sale or transfer to another person or otherwise howsoever De deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder except by restoration to the defaulter which means if there is any restoration of the land to the defaulter be deemed to be freed from all tenures, rights, incumbrances and equities thereto created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder will revive. Whereas Section 56 of the Bombay Land Revenue Code the word 'except' is not there. From this it is clear that Legislature thought all charges, encumbrances, etc. on the property which were subsisting at the time of forfeiture will revive in case such forfeited lands are restored to the original occupant.
15. The Authorities on which reliance was placed by Sri Karanth are those which considered the scope of Section 56 of the Bombay Land Revenue Code or the effect of Section 43 of the Transfer of Property Act and not on Section 54 of the 1888 Code. On comparison, the Authorities relied upon by Sri Karanth have no application to the case on hand so also Section 43 of the Transfer of Property Act. On the other hand, the Authorities on which reliance was placed by Sri Raghavachar in all fours are applicable to the case on hand. Where Section 54 of the 1888 Code was an issue for consideration, this Court found that forfeiture does not extinguish the right and equity between private parties and also held that by restoration the properties have been reverted back to the original position. Apart from this, the evidence available in the case goes to show that subsequent to Court auction Padmanabha Kamath sold the land to the plaintiff who continued in possession till 1961. There is nothing to show that during this period either Syed Basheer Ahmed or the Government was in possession of the lands. Further, there is nothing to show that after the arrears were paid and before the restoration a request was made to the Court by auction purchaser that he is relinquishing his rights over the lands. The possession of the plaintiff was also not an illegal one, as her vendor was put in possession of the lands at the instance of the executing Court. The Judgment debtor did not choose to challenge the same. Thus, the plaintiff's vendor was in lawful possession at the time of the sale deed in favour of the plaintiff (Exhibit P.1). He (Plaintiff's vendor-Padmanabha Kamath) had absolute right to transfer the lands which he transferred to the plaintiff under the sale deed, Exhibit P.1. Hence, restoration of land in favour of the Judgment-debtor Syed Basheer Ahmed - did not make him a fresh grantee. But, on the other hand he was placed in the original position, viz., position in which he was the owner on the date of forfeiture. As an owner he was entitled to be in possession. When he suffered a decree and his properties were brought to sale to satisfy the decree, the Judgment-debtor (Syed Basheer Ahmed) did not choose to challenge it. Hence, the purchase by Padmanabha Kamath a valid one. The purchase of the lands by Padmanabha Kamath in Court auction and the sale by him to the plaintiff were all earlier to the sale transactions that took place between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and the subsequent sale by Bathulla Begum and Nazir Ahmed to the defendant on 1.4.1966. On the date of sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed whatever rights Syed Basheer Ahmed had on the lands had already been conferred on Padmanabha Kamath by the Court auction sale and such rights in turn were transferred by Padmanabha Kamath in favour of the plaintiff under the sale deed Exhibit P.1. Hence, the sale transactions between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and between Bathulla Begum and Nazir Ahmed and the defendant were inoperative and not binding on the plaintiff. The possession of the defendant, if any, was also illegal and unauthorised.
16. Hence, my finding as to the legal effect of the order of the restoration of the land in favour of Syed Basheer Ahmed is that it revived his ownership and whatever right, title and interest he had over the lands as on the date of forfeiture of the said lands reverted back. By purchasing the said lands in Court auction, Padmanabha Kamath became an absolute owner of the lands. Transfer of the said lands by him to the plaintiff a valid one. Thus the plaintiff acquired right of ownership over the lands. Whereas, the sales by Syed Basheer Ahmed to Bathulla Begum and Nazir Ahmed from whom the defendant purchased the lands in question were neither valid nor binding on the plaintiff, as prior to these sales whatever right, title and interest Syed Basheer Ahmed had over these lands in fact had extinguished and had vested in Padmanabha Kamath and he in turn had conveyed the same to the plaintiff by way of sale.
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