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Cites 22 docs - [View All]
Ramasamy Pillai And Ors. vs Marimuthu Goundan And Anr. on 27 January, 1928
Abdul Sac Alias Varusai Mohammad ... vs Sundara Mudaliar And Anr. on 24 April, 1930
Mt. Imtiaz Bibi vs Mt. Kabia Bibi on 6 April, 1929
Upendra Nath Kalamuri vs Kusum Kumari Dasi on 5 June, 1914
Ramanathan Chettiar vs Vava Levvai Macakayar And Anr. on 17 October, 1899
Citedby 4 docs
Shanmugam vs The Child Trust
Smt. Durga Devi W/O Dr. Chunilal vs Shanti Parkash Thakar Das And Ors. on 30 November, 1959
Prem Narain Aggarwal vs Basheshar Dass And Ors. on 26 October, 1970
Thiruvendipuram Dorairajam ... vs Vemaswami Rama Naidu And Ors. on 7 July, 1949

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Madras High Court
(Vadlamannati) ... vs (Vadlamannati) Venkatanarayana ... on 22 July, 1935
Equivalent citations: AIR 1936 Mad 733
Author: Ramesam

JUDGMENT Ramesam, J.

1. The above three appeals are appeals from the decrees of the Subordinate Court of Narasapur in two original suits. Appeals Nos. 372 of 1926 and 36 of 1927 are cross-appeals from the decree in O.S. No. 7 of 1922. Appeal No. 105 of 1927 is an appeal from the decree in O.S. No. 27 of 1922. O.S. No. 7 of 1922 was itself originally instituted in the Subordinate Court of Ellore where it was O.S. No. 96 of 1919, but it was transferred to the Subordinate Court of Narasapur where it was re-numbered as No. 7 of 1922. The other suit was originally filed before the District Munsif of Bandar where it was O.S. No. 397 of 1919. It was then transferred to the Subordinate Court of Ellore where it was numbered as 95 of 1921 so that it may be tried along with the other connected suit and it was then transferred to the Subordinate Court of Narasapur where it was numbered as 27 of 1922. It will now be convenient to take the first of the suits (O.S. No. 7 of 1922) and the two appeals from the decree in it. The facts of this suit may now be stated. Plaintiff 1 V. Venkataramayya, and defendant 1, V. Venkatakrishnayya, are brothers. Plaintiff 2 is plaintiff 1's son. Defendants 2 and 3 are defendant 1's sons. The plaintiffs, though natives of the Kistna District, were resident in Madras at the time of the transactions connected with the suit.

2. Defendants 1 to 3 are residents of Masulipatam. The two plaintiffs and the three defendants together filed a suit (O.S. No. 65 of 1908) against certain persons on a mortgage bond, dated 1st November 1892, and obtained a decree. An extract from the suit register relating to that suit is now filed as Ex. 28 for the purpose of identifying the parties. The first two plaintiffs there are the present plaintiffs and plaintiffs 3 to 5; these are the present defendants 1 to 3. In execution of that decree two villages belonging to the mortgagors were brought to sale. Previous to the Bale both plaintiffs 1 and 3 obtained leave to bid. Originally their idea was that both the branches of the family might purchase the properties in auction but afterwards it seems to have been arranged that plaintiff 1 only should take all the properties to be purchased in auction and plaintiff 3 should be paid by plaintiff 1 'his half-share of the value of the properties. Accordingly almost at the last moment it was settled that plaintiff 3 who was in Masulipatam should bid for the properties but really on behalf of plaintiff 1. On this understanding both the villages were knocked down in favour of plaintiff 3 (on behalf of plaintiff l) in the auction held on 7th September 1914. The sale was confirmed on 20th October 1914. According to the original understanding Rs. 26,000 had to be paid by plaintiff 1 to plaintiff 3. Rs. 3,000 had been previously sent by Ex. F, dated 5th October 1914, and the other Rs. 23,000 were sent by a letter, dated 5th November 1914 (Ex. M), to Vakil Mr. Hanumantha Rao, who acted for both the plaintiffs.

3. To avoid loss of interest Mr. Hanumantha Rao handed over the money to plaintiff 3 but took a promissory note for it (Ex. H, dated 25th December 1914) because by that time a dispute arose between plaintiffs 1 and 3 as to who should bear the stamp charges for conveying the whole, property to plaintiff 1 and who should bear the loss of interest. Ex. M is the letter written by plaintiff 1 to the same vakil giving his views in the matter. The parties then applied to the District Judge praying that the sale certificate may be issued in favour of plaintiff 1 only. Exs. 5 (a) and 17 are affidavits, dated 13th November 1914 sworn by plaintiff 3 mentioning the arrangement. Ex. U, dated 22nd November 1914, is a letter written by plaintiff 1's clerk Kusal Ramayya to plaintiff 1 reporting the payment of Rs. 26,000 and mentioning some small differences between the parties (vide para. 4). The application came on for orders before the District Judge who would not accede to the request of the parties saying that there was no authority for it and who directed that the sale certificate should be issued in the name of the party who actually bid at the sale, namely, plaintiff 3 and not plaintiff 1. It almost looks as if this order of the District Judge, refusing to issue the sale certificate in favour of plaintiff 1, is at the root of the subsequent misunderstanding between plaintiffs 1 and 3 because the question immediately arose as to who should bear the expenses of the stamp for the re-conveyance.

4. The sale certificate was actually issued on 13th January 1915 but bears date 20th October 1914 for under the Civil Procedure Code it should bear the date of confirmation. Applications for delivery of the properties were filed in July 1915. Ex. C is the petition and Ex. C-1 is the affidavit dated 15th July 1915. Of the two villages that were purchased, viz., Guntagadur and Pennada Agraharam, the plaintiffs were able to obtain easy delivery of the former village and there need be no further reference to it hereafter. But in the case of Pennada there was objection by certain persons putting forward certain limited rights of their own in the village and obtaining delivery to that extent. There were reports by Amins regarding these objections. On account of the differences between the parties as to the loss of interest and the stamp charges, the Rs. 26,000 sent by plaintiff 1 for the purpose of payment to plaintiff 3 were refunded by plaintiff 3 to Mr. Hanumantha Rao and Mr. Hanumantha Rao-returned the amount to plaintiff 1. Plaintiff 3 filed a suit on 3rd October 1916 on. the original side of this Court to recover the amount because plaintiff 1 was resident in Madras. Though the trial Judge, Coutts Trotter, J. as he then was, dismissed the suit, it was decreed by Sir-John Wallis, C.J. and Spencer, J. in O.S. No. 72 of 1917. The result of these transactions is that though plaintiff 1 had to pay for the other half share to plaintiff 3 he did not obtain actual possession of one of the villages that were purchased in Court auction. Accordingly the present suit was filed in the Subordinate Court of Ellore on 30th August 1919 for possession of the properties or in the alternative for damages amongst defendants 1 to 3 (plaintiffs 3 to 5 in the other suit) for their breach of duty in taking further appropriate steps for obtaining: effective possession on behalf of plain-tiff 1. Defendants 1 to 3 pleaded that they were not liable in damages as they had done everything they were bound to do according to the original arrangement. A formal conveyance was executed by defendants 1 to 3 in favour of the plaintiffs on 4th August 1916, but the plaintiffs would not accept it. As to the proceedings taken for obtaining delivery of the village they pleaded in para. 11 of the written statement thus:

The Agraharam lands of Pennada have been in possession of the ryots. These plaintiffs are bound to issue notices to quit, etc., to the tenants and to take necessary steps for evicting the ryots and for taking actual possession. As the plaintiff desired symbolical delivery at least should be obtained in the usual course, these defendants applied for delivery of possession also. Thereupon delivery warrant also was issued. Thereupon these defendants seeing there would be no objection to symbolical delivery and believing bona fide that symbolical delivery would have been obtained, mentioned' in the sale deed that those lands also were said to have been taken possession of.

5. The other allegations in the plaint were denied. Of the remaining defendants in this suit, defendant 4 was the original mortgagor, He does not contest the suit except as to a small matter which it is unnecessary to mention. Defendants 6 and 7 were originally co-owners with defendant 5 of the lands in their possession, but in the family arrangement the lands had fallen wholly to the share of defendant 5 and so they have no further interest in the suit. Defendants 13 to 16 and 19 do not appear in the case. Defendants 24, 29 and 31 to 33 also do not contest the suit. Defendant 30 died pending suit. It is necessary to refer in greater detail to the pleas of the 5th, 8th, 9th and the others. The present defendants 5, 6, and 7 were defendants 6, 7 and 8 in O.S. No. 65 of 1908. The reason for impleading them in that suit is this: Defendant 5's father Somaraju filed a suit against the mortgagors of that suit and obtained a money decree and in execution of that money decree brought certain items in the Pennada Agraharam to sale in public auction on 29th January 1906 and purchased them for Rs. 84. That sale was confirmed on 18th April 1906 and the sale certificate issued is Ex. 32. The sale certificate shows that the sale itself was made subject to the mortgage in favour of the five plaintiffs in O.S. No. 65 of 1908. It is because they were purchasers (subject to the plaintiffs' mortgage) and therefore they were entitled to have an opportunity of redeeming the mortgage that they were impleaded as defendants in O.S. No. 65 of 1908. But in the suit itself they never raised any objections to the plaintiffs' right to a decree. At the time of the delivery proceedings also they never raised any objection. But in the present written statement defendant 5 pleaded that the plaintiffs were not entitled to possession in this suit and that they should have obtained possession only in execution proceedings. Defendants 8 and 9 are Inti Ramachandrudu and Inti Bhaskara Rao. Ramachandrudu's father Subbarayudu and Bhaskara Rao's father Venkataswami were defendants 4 and 5 in O.S. No. 65 of 1908. The reason for impleading them in that suit was that they filed a suit against the mortgagors on a mortgage later in date than the mortgage of the plaintiffs in O.S. No. 65 of 1908 and obtained a decree and in the auction held on 4th January 1909 in execution of that decree, defendant 8 purchased certain items in the Pennada Agraharam. The sale was confirmed on 22nd April 1909. Ex. 29 is the sale certificate. But that sale again was expressly made subject to the mortgage of the five plaintiffs in O.S. No. 65 of 1908.

6. Defendant 8 obtained delivery of the lands he purchased but this delivery was not a delivery of the actual possession of the lands but only the right to collect the cist from the ryots because as in the other case the ryots were claiming occupancy rights in the lands. The delivery receipt is Ex. 33, dated 20th August 1909. Even the receipt granted by him shows that only the right to collect cist was delivered : vide Ex. 27, dated 20th August 1909. At the time of the delivery proceedings in 1915 the present defendant 8 claimed occupancy rights in some of the items he purchased. This was all the objection he raised. There was no objection raised to the delivery of the other items purchased by him. But in his present written statement he also pleaded that the plaintiffs were bound to obtain delivery in execution proceedings and could not get possession in this regular suit. The predecessor in title of defendants 10 to 12 was defendant 3 in O.S. No. 65 of 1908. They are impleaded in the present suit because they filed a suit against the mortgagor and obtained a money decree and in execution of that money decree got some of the mortgage properties in Pennada sold in public auction on 6th January 1909. The sale was confirmed on 6th February 1909, and the sale certificate Ex. 23 was issued on 11th March 1909. This sale was expressly made subject to the mortgage held by the five plaintiffs in O.S. No. 65 of 1908. But these defendants did not appear as objectors in the delivery proceedings in 1915. Defendants 10, 12 and 25 to 28 now plead that the plaintiffs are not entitled to obtain possession in this suit but are bound to obtain it only in execution proceedings. Defendant 18, who appeared as an objector in the delivery proceedings, now says that he has no interest in the suit lands, but that his objection in the delivery proceedings was really on behalf of defendants 10 to 12 and 25 to 28. It is not necessary to refer to the pleas of the other defendants. On these pleadings 14 issues were framed. Issue 1 related to the arrangement between the plaintiffs and defendants 1 to 3. Issue 2 runs thus:

Whether defendants 1, 2 and 3 and plaintiffs are not bound to obtain delivery through Court of the suit land purchased in auction, and if so whether the suit is maintainable against the other defendants ?

7. It is unnecessary to state the other issues. On issue 2 the Subordinate Judge found that plaintiffs and defendants 1 to 3 cannot obtain possession in this suit and were bound to obtain possession in proceedings in execution of the decree in O.S. No. 65 of 1908. He accordingly dismissed the suit for possession and gave a decree for damages to the plaintiffs against defendants 1 to 3 the measure of damages being the value of half of the Pennada lands at the time of the suit. Defendants 1 to 3 appeal in Appeal No. 372 of 1926. Appeal No. 36 of 1927 is cross-appeal by the plaintiffs. In it the claim for possession is repeated. So far as the plaintiffs and defendants 1 to 3 are concerned, it is not necessary to notice at length the contentions between them because it was stated before us by the learned advocates for these parties that if the question of possession as against the other defendants is decided they are willing to settle the differences as between themselves, and on this statement we heard the appeals in the first instance in so far as they related to the right to possession as against the other defendants.

8. The contention on behalf of the other defendants is that possession of the suit lands cannot be obtained in this suit but should be obtained in execution of O.S. No. 65 of 1908. This contention is based on Section 47, Civil P.C., which provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The argument is this: Where the decree-holder has to obtain delivery of certain lands in execution of the decree from the judgment-debtor, his only remedy is by application for delivery. It is not of course suggested that delivery may not be obtained privately, i.e., by consent of parties (and it is very rarely that judgment-debtors consent to deliver properties to decree-holders), but where the parties do not consent to such delivery and the help of the Court is necessary, only the executing Court can help the decree-holder, and no separate suit against the judgment-debtor will lie. Now with reference to this section, at this stage it is necessary to notice one point of difference between the several Courts in India. If the person who has to obtain delivery is the decree-holder only, there is no scope for much difference. But where, in execution of the decree the decree-holder purchases the properties of the judgment-debtor (whether mortgage decree or money decree), then the question arises whether the decree-holder purchaser is also bound by the rule in Section 47, i.e., whether he should obtain delivery only through the executing Court and cannot resort to a separate suit. The Madras High Court and lately the Calcutta High Court have held that Section 47 applies to decree-holder purchasers, but the other High Courts have held that it does not. The decisions of the Madras High Court in this matter are reported in Kattayath Pathumay v. Raman Menon (1903) 26 Mad 740 and Sandhu Taranagar v. Hussain Sahib (1905) 28 Mad 87.

9. The latest decision of the Calcutta High Court is reported in Kailash Chandra v. Gopala Chandra 1926 53 Cal 781, A different rule prevailed earlier in that Court. The latest decisions of the Patna, Allahabad and Bombay High Courts are reported in Tribeni Prasad Singh v. Ramasray Prasad 1931 10 Pat 670, Bhagavati v. Banwari Lal (1909) 31 All 82 and Hargobind Fulchand v. Bhudar Raoji 1924 48 Bom 550, all decisions of Full Benches. The learned advocate for the appellants questions the correctness of the Madras rulings in this matter, but in view of the fact that we are bound by the decisions of our Court he has not addressed us an elaborate argument. How-ever he has not given up the point and expressly reserves his right to argue it in a higher Court if such a course becomes necessary. At present he is content to argue the appeals on the footing that the Madras view is correct. It may perhaps be convenient to state the main reasons for the difference between Madras and the other High Courts. The view prevailing in the other High Courts is that once a decree is executed by bringing the properties of the judgment-debtor to sale the execution of the decree is complete; the right to obtain delivery of the purchased properties is not a matter relating to execution, discharge or satisfaction of the decree; therefore, a regular suit to obtain possession lies and Section 47 is not a bar. But the view of the Madras High Court and latterly that of the Calcutta High Court is that until the delivery of the property is obtained the decree-holder cannot be said to have obtained satisfaction of his decree, the right to the property is in substitution for the money to which the decree-holder was entitled and until he got the property it cannot be said that his right to the decree amount is satisfied; therefore the dispute about delivery though it may not relate to execution or discharge still relates to satisfaction of the decree and so in the case of a decree-holder who is also auction-purchaser, delivery must be obtained in execution proceedings only and not by a separate suit. Mr. Varadachari who argued the case for the appellants then points out that even in Madras it was held that where the dispute is really between the decree-holder purchaser on the one hand and some other persons who are not judgment-debtors on the other hand the bar does not apply and a regular suit lies, and he relies on the following decisions : yelumalai Chetti v. Srinivasa Chetti (1906) 29 Mad 294, Kolintavita Mama Anuma v. Kolinatavita Haji Kandi (1908) 31 Mad 37, Hassain Ammal Bibi v. Ismail Moideen Rowther 1916 28 MLJ 642 and Ahmad Kutty v. Cherakava Moidutty 1927 39 MLT 281. Now I proceed to discuss the cases assuming that the Madras view is correct. According to this view a claim for delivery of the purchased lands remaining unsatisfied is really a question between the decree-holder and the judgment-debtor and if the judgment-debtor has got to be proceeded against for obtaining delivery, such proceedings should be in execution only and not by a separate suit.

10. The essence of the reasoning is that there is an outstanding dispute between the decree-holder purchaser and the judgment-debtor and such a dispute should be settled in execution only. Bearing these remarks in mind let us examine the facts of this case and see how far the principle of Madras decisions applies. When in 1915 the Amin proceeded to Pennada Agraharam for delivering possession of the purchased lands to the plaintiff what is it that happened? The mortgagor judgment-debtor (defendant 4 in O.S. No. 65 of 1908) raised no objection. When we remember that the right to all the lands in the Agraharam had passed to other purchasers before the execution in 1914 there is not much in this. Defendant 5, who was impleaded as prior purchaser but subject to the mortgage of the plaintiff in O.S. No. 65 of 1908 and who had raised practically no defence to the suit, also raised no objection. He had been a previous purchaser of a large number of items in the villager The present defendants 8 and 9 were the sons of defendants 4 and 5 in O.S. No. 65 of 1908 and, therefore, representatives of the judgment-debtors in that suit. Now what was the objection which they raised ? They claimed occupancy right in 7 items. As a matter of fact defendant 8 had purchased 14 items, but he did not raise objection to all the 14 items and even as to the items as to which he raised objection the objection he put forward was not one based on their own title as to which they were content to submit to the decree-holders but only one relating to occupancy rights as tenants. The present defendants 13 and 14 also raised the objection that they were entitled to occupancy rights but they do not resist the suit now.

11. There are a number of other objectors' who also claim occupancy right in certain-items but they were neither parties in O.S. No. 65 of 1908 nor with the exception of defendants 15, 17, 19, 24, 32 and 33, parties to the present suit. Of these defendant 15 does not resist the suit now. As already mentioned defendant 18 obstructed the delivery proceedings claiming; occupancy right, but he claims no interest in the suit; only he says now that his obstruction was on behalf of defendants 10' to 12 of which there is no proof. The net result is that all the obstruction that happened was on the ground that certain' persons had got occupancy right in the suit lands. Beyond this there was no objection to the delivery and no obstruction. Ex. 13 (A) is the report of the Amin stating seriatim the objections raised by the various objectors.

12. On an examination of this document we find that, except in the case of defendants 8 and 9 whose fathers were parties to O.S. No. 65 of 1908 and who also objected in respect of some items only in the delivery proceedings, all the others were not judgment-debtors in O.S. No. 65 of 1908. Now as a result of the objection to such a delivery by the Amin as would affect their occupancy rights and no objection by anybody else as to anything beyond this, what is the outstanding dispute left? It is a dispute raising the question whether certain tenants in the village are entitled to occupancy rights but no more. In so far as such a dispute was raised by the parties to O.S. No. 65 of 1908, it may be that the question should be decided in execution proceedings. But even as to them only the question of the occupancy right is the outstanding dispute left to be decided. But as to others who were not parties to O.S. No. 65 of 1908, they being not parties to that suit, a regular suit is the only remedy and Section 47 is no bar.

13. It has been argued by the respondents' advocate, Mr. Srinivasa Ayyangar, that in such a case the decree-holder should formally obtain delivery of the landlords' interest under Order 21, Rule 96. Order 21, Rule 95 relates to delivery of actual possession, i.e., vacant possession. Rule 96 relates to delivery of property in the occupation of tenants whether the tenants claim some interest in the land or some right to remain in it whether it is occupancy right or tenancy for a term, or tenancy from year to year, provided the right to remain in the land was asserted. In this case it is true that the delivery that was originally attempted was under Order 21, Rule 95, but the result of all the objections raised was that the outstanding dispute that remained was only the right of the tenants. Nothing else remained. Under such circumstances it seems to me that the commonsense and reasonable view is that the delivery so far as landlord's right was concerned was effected and what was not completed was the right to actual possession asserted by the tenants. Now it is contended that nothing has been delivered, not even the interest of the landlord, and therefore no regular suit lies. It is obvious on the face of the documents that actual possession could not be delivered because of the objection of the tenants to actual possession.

14. The right of the landlord is really an intangible interest, and though, if the decree-holder wishes to go through the form of delivery under Order 21, Rule 96 recognizing the right of the tenants he may do so, is there any rule of law which says that he is bound to do so? Actual possession is in the tenants. They insist on retaining actual possession. An intangible right remains in the landlords. There is no objection from those landlords.

15. At this stage we may remember that the possession obtained by defendant 8 was only the right to collect the kist. He was in actual possession. There was no actual possession to be delivered from him. Nor can it be suggested that the decree-holder should then go through the procedure indicated in Rule 97. Such an application is bound to end in dismissal if the Court is satisfied that the objection was raised by persons other than the judgment-debtor and raised bona fide. In the case of defendants 8 and 9 as to some of the items purchased by defendant 8 all the objections were by persons other than the judgment-debtor claiming a bona fide right to occupy the land. Now it must be remembered that at that time there was actually litigation between the Agraharamdars of Pennada and other jeroiti tenants of this village in which the tenants claimed occupancy rights and the landlords denied them. In 1915 appeals were actually pending in the High Court. In that litigation the District Munsif found against the landlords but the Subordinate Judge decreed the landlords' suit and found against the tenants and the tenants appealed to the High Court. Under such circumstances there is no wonder that other tenants in the village also claimed occupancy rights seeing that the matter was sub judice and asserted the right to actual possession on the basis of that right. It is certainly a bona fide objection and cannot be said to be an objection raised by them at the instigation of the judgment-debtor within the meaning of Order 21, Rule 98. So that the only result of an application under Rule 99 would be a dismissal followed by a regular suit. Can it be said that the decree-holders in O.S. No. 65 of 1908 were bound to go through the mere formality of applying and getting their application dismissed under Rule 99. It is conceded by the respondents' advocate that they are not bound to resort to this. But it is said that they should apply for possession of the kind indicated in Rule 96, and if they do not do so there is no delivery of any kind. But the question is not whether there is delivery of any kind or not.

16. That is not the point to be discussed. The question is whether Section 47 is a bar. Section 47 is a bar to a regular suit if the object of that suit is to decide a question between the decree-holder purchaser and the judgment-debtor. The result of the execution proceedings under Ex. 13 (A) is that there was no dispute between the decree-holder purchaser and the judgment-debtor. The dispute that remained was a dispute between decree-holder and persons other than the judgment-debtor. Where the object of the suit is to settle this dispute, Section 47 cannot be a bar and it is no objection to say that there was no deli-very under Rule 96.

17. There is no rule of law which says that there must be some kind of delivery. The only rule of law is one requiring that all disputes between the decree-holder purchaser and the judgment-debtor should be settled in execution proceedings and only indirectly this rule of law involves the need for obtaining some delivery under Rules 95 and 96. But if the dispute itself is not as against the judgment-debtor but against some other persons the need for delivery as against the other persons goes and there is no bar to a regular suit. In other words all that is obligatory on the decree-holder purchaser is the pursuit of a proceeding for obtaining delivery to have an outstanding dispute between him and the judgment-debtor. But it may be objected that the above line of reasoning is practically going against the rule of law as laid down by the Madras High Court in Kattayath Pathumay v. Raman Menon (1903) 26 Mad 740 and Sandhu Taranagar v. Hussain Sahib (1905) 28 Mad 87. But I am anxious to point out that it is not so. They are cases where either the decree-holder purchaser did not apply for execution at all or where the application itself was out of time and therefore was dismissed or where the application was ordered but the decree-holder and the Amin did not go to the lands which had got to be delivered i.e. no attempt at execution was made. In all such cases, at least according to the reasoning of the Madras High Court, one is entitled to assume that the outstanding dispute is a dispute between the decree-holder purchaser and the judgment-debtor relating to the delivery of the whole of the interest in the land.

18. Without any clear indication the other way, it cannot be assumed on behalf of the decree-holder purchaser that if once delivery is attempted, the judgment-debtor is not going to object and the only objection would be by some others. When nothing has happened, one must assume that the whole question of delivery between the decree-holder purchaser and the judgment-debtor remains as the outstanding dispute. That being so, Section 47 is a bar. This is all that was decided in the Madras cases. There is not a single case in which delivery was attempted and delivery was effected so far as the judgment-debtor's interest was concerned and the only objection that was forthcoming was by others, and even that to a limited interest. In this case the facts clearly indicate that there was no objection of the judgment-debtors (except in the case of defendants 8 and 9 as to some of the items) and the objection was only as regards the tenants' interest and this was mostly by persons other than judgment-debtors. There was some dispute between the parties as to the exact meaning of the return of the Amin Ex. 13 (A). It was contended by the learned Advocate for the respondents that the translation as it stands on the record is erroneous. As it stands on the record the document runs thus:

I went to the fields referred to in the sale certificate dispossessing the defendants of the same and delivered possession of the same to Ramadoss Garu on behalf of the said plaintiff.

19. When we look at the original which is in Telugu I find the above translation is incorrect. What the document says is this:

Having gone to Pennada Agraharam village, and having been accompanied by the plaintiff's gumastha Moolpoori Ramadoss Garu and other mediators, and having dispossessed the judgment-debtors from the lands bearing the numbers mentioned in the sale certificate attached to the warrant when I was about to deliver them to Ramadoss Garu, the following obstructors whose names are given, etc.

20. The document certainly indicates that so far as the judgment-debtors were concerned they were dispossessed. There was no objection from them. There was objection from the tenants but that was only as to a limited interest leaving only a limited question outstanding and leaving no question between the decree-holder and the judgment-debtors outstanding. Under such circumstances, I am of opinion that the decisions of this Court in Kattayath Pathumay v. Raman Menon (1903) 26 Mad 740 and Sandhu Taranagar v. Hussain Sahib (1905) 28 Mad 87 do not apply, assuming them to be correct and the principle of the other Madras decisions applies. I do not think it is necessary to refer in great detail to the other cases cited by the learned Advocates on both sides, most of which relate to the question how far symbolical possession starts a new starting point for limitation, for there is no question of limitation by 12 years in this ease. The Subordinate Judge in paras. 24 and 25 of his judgment relies on the Full Bench decision in Veyindramuthu Pillai v. Mayanadan 1920 43 Mad 107. As he points out it is true that a matter relating to delivery is a matter relating to execution on the Madras view. But the outstanding dispute must be between the judgment-creditor and the judgment-debtor. That is certainly not satisfied in this case as the only objection that was raised was not by the judgment-debtors but by persons other than judgment-debtors except in the case of defendants 8 and 9. I therefore think that there is no bar of Section 47 in this suit and the plaintiffs are entitled to obtain possession of the suit lands against all the persons in possession. The above reasoning does not apply to defendants 8 and 9 in so far as the items in respect to which they claimed occupancy rights are concerned. Those items are 1, 2, 3, 24 and 27 of the plaint and items 1 and 2, para. 14 of the plaint.

Cornish, J.

21. I am of the same opinion. I think it is sufficiently shown by the Amin's reports and by the evidence of the plaintiff's gumastha who went with him to take delivery of the Penanda lands that delivery as against the judgment-debtor was in fact given. What appears to have been done was in accordance with the common mode of delivery as described in Kocherla Jota Venkatakrishna Rao v. Vadrevu Venkappa (1904) 27 Mad 262 at p. 269:

In all oases of delivery of possession of immoveable property whether to the decree-holder or to an execution purchaser, the officer entrusted with the warrant of delivery proceeds to the spot and delivery of possession is effected on the land or at a spot near enough to command a view of the land with its boundaries in the presence of the decree-holder or purchaser or their agent and generally in the presence of several others, including village officers; and after delivery is thus effected, a receipt acknowledging delivery of possession and attested by witnesses is obtained and forwarded to the Court along with the return to the warrant.

22. No receipt for delivery was given in this instance, but it is not a constituent part of the act of delivery. It is true that in Ex. 13, the Amin's return to the warrant and in Ex. 13-A, the obstruction report, the Amin stated that owing to certain ryots causing obstruction by asserting that they had jeroiti rights in the lands, delivery of the possession could not be effected. But if the Amin did, as I think he did, all that was essential to give delivery under Order 21, Rule 95 his views upon the effect of certain persons coming forward and asserting occupancy rights cannot alter the fact of delivery in pursuance of the delivery warrant. I do not agree with the suggestion that when these persons came and asserted their claims the auction-purchaser was bound to go back to the Court and get a delivery warrant under Rule 96. He might have done so if the interruption had prevented the delivery of possession. Or he might, at the risk of being relegated to a suit, have chosen to take proceedings under Rule 97 et seq which provide for cases of resistance to delivery of possession. But the rules in Order 21, nowhere require that if an auction-purchaser proceeds to take delivery under Rule 95 and is met with the objection of persons claiming occupancy rights in the land he must proceed under Rule 96 to get a valid delivery. Delivery taken under Rule 95 would still be a good delivery against the judgment-debtor in possession though it would not be operative, against the possession of some third party unless the delivery took place in his presence and adversely to the third party's claim: Kocherla Jota Venkatakrishna Rao v. Vadrevu Venkappa (1904) 27 Mad 262 at p. 270. Having got a valid delivery under Rule 95, it was unnecessary in my opinion for the auction-purchaser to take any other course than to file a suit against those persons who resisted his possession of the lands in respect of which they claimed jeroiti rights if he did not admit those claims. Except in so far as Section 47, Civil P.C., sets up a bar the plaintiff's suit is maintainable against the defendants, who disputed his right to possession.

Ramesam, J.

23. The further questions whether the occupancy rights of defendants 8 and 9 can be agitated in this suit or should have been decided in execution proceedings in the former suit, and whether the plaintiff's claim for full possession in this suit is barred by Section 47, Civil P.C., have got to be discussed. We heard further arguments on this matter. On the face of the section apparently it looks as if the point cannot be agitated now because defendants 8 and 9 were parties to the former suit. But Mr. Varadachari addressed to us an elaborate argument tending to the conclusion that the present plaintiff is not precluded from raising the question. It is based on the admitted fact that the 8th & 9th defendants' predecessors-in-title, were impleaded in the former suit as the defendants 4 and 5 only because of their position as puisne mortgagees and the purchase under the decree obtained on this mortgage. The way Mr. Varadachari puts his argument is this: A principle has undoubtedly been recognised by the High Courts and the Privy Council that in a suit on a mortgage no question relating to title paramount to the mortgagor's right should be gone into: vide Ramaswamy Pillai v. Marimuthu Goundan 1928 Mad 764 and Bhuban Mohan Ghose v. Co-operative Hindustan Bank Ltd. 1925 29 CWN 784. These decisions show that the basis of such a rule is that the suit would be bad for misjoinder of parties and causes of action. The only exceptions to the rule prohibiting an enquiry into the question of paramount title are apparent. In Ramaswamy Pillai v. Marimuthu Goundan 1928 Mad 764, I observed that the question was raised by both parties by consent and for four years the issue was allowed to remain. But a better ground was mentioned by my brother Reilly, J. He pointed out the plaintiffs contended that as the property was joint family property the other defendants were also constructive parties to the mortgage. To this these defendants pleaded that the property was not joint family property and it is not that the defendants themselves raised the plea of paramount title. Another instance of the question being allowed to be so raised is the decision of Venkatasubba Rao, J., in Doraiswami v. Varadarajulu 1928 Mad 2. Another instance is the decision of Devadoss, J. in Muthiah Servai v. Somasundaram Chetti 1928 Mad 199. There the question was raised whether it was the joint family property or self-acquired property of the mortgagor. It resembles the decision of myself and Reilly, J., at p. 764(13). Devadoss, J. observed in that case that the point should not be left to be determined in execution, defendant 2 not being a stranger to the transaction.

24. In all cases where the point was allowed to be raised in the suit itself, whatever the ground may be, there is no difficulty. If the point is tried in the suit, there can be no question of its arising for the first time in execution. But the question that now arises before us is, assuming the point was excluded from the suit, should it be raised for the first time in execution, and if it is not raised in execution are the parties barred from having it tried in, another suit ? For instance in the present case, suppose defendants 8 and 9 did not set up their occupancy rights in execution of the former decree and object to the delivery, should they be precluded from raising the question in the present suit, and conversely they having raised the question, but the decree-holder not having got a final decision in the matter, is he precluded from raising it now ? To say that the other party should raise such a question in the execution proceedings in the former suit leads on the face of it to this anomaly: viz. that a point which should not be raised in the suit as a general rule, and can only be allowed in exceptional cases, should be raised in execution proceedings. Such a conclusion seems to be startling.

25. So far is the rule that the question of paramount title should not be raised in the suit well established, that in all such cases it has been held that there is no res judicata where the point is raised in a later suit : vide Gobardhan v. Mannalall 1918 40 All 584, cited by me and Reilly, J. in Ramaswamy Pillai v. Marimuthu Goundan 1928 Mad 764, Girjee Kanta Chakrabarthy v. Mohun Chandra Acharya 1916 35 IC 294, and Akkamma v. Venkatapathy 1925 Mad 59, where a certain person was added as the legal representative of a deceased party and it was held that the decision was not binding on him in his personal capacity : vide also Ramanna v. Venkatanarayana 1927 52 MLJ 52. In all these decisions the question arose in the form of a question of res judicata, i.e., what was discussed was whether the question was bound to be raised in the earlier litigation and because the other rule of law that it should not be raised in the earlier litigation was recognized it was held that there was no res judicata in the later suit. But while it is recognized on all hands that the point should not in general be allowed to be raised in the former suit can it be said that it is bound to be raised in the execution proceedings and only if it can be said that the point is one which must and ought to have been raised in execution proceedings, the consideration of the matter can be barred by Section 47 in the later litigation. The question of occupancy could not be raised in the suit and explanation 4 does not apply to such a case.

26. So that we come to this situation: that while on the one hand there is the rule of law prohibiting the raising of the question in the former suit, and there is no duty to raise it in the suit, and while also holding that there is no res judicata in the later litigation by not raising it in the earlier suit still the raising of such a question in the later litigation may be barred by Section 47, Civil P.C. On the face of it the bar of Section 47 can only apply to cases where there is a duty to raise the question in the earlier proceedings. The duty to raise the question in the earlier proceedings and the bar in the later suit are co-extensive and each complements the other. Where there is no duty to raise the question in the earlier proceedings there can be no bar in the later proceedings. The bar in the later suit can only be because of the duty to raise the question in the earlier proceedings. Now it cannot be that, while the raising of the question in the suit is prohibited, the question should be raised in execution. Execution proceedings are a continuation of the suit, and on the face of it is very anomalous to say that the point should be excluded in the trial of the suit but it is equally incumbent on the parties to raise it in execution proceedings. No doubt sometimes questions arise in execution which are not exactly questions that arise in the suit. But they are questions arising between the parties as a matter of detail in the carrying out of the decree, such as, for instance, questions of excess delivery or defective delivery.

27. In general, questions which arise between the parties are merely questions of detail in the carrying out of the decree, and it cannot be that a question should be raised in execution which ought not to have been raised in the suit. There is one apparent exception to this general statement, viz. where a person is added as legal representative and where the legal representative raises the question that certain property which was sought to be attached in his hands is not property which he got as the assets of the deceased party. Instances of such cases are Setchand Mal v. Durga Dei (1890) 12 All 313; Rajrup Singh v. Ramgolam Roy (1889) 16 Cal 1; Venjappayyan v. Karipanamal Parvati (1903) 26 Mad 501 and Imtiaz Bibi v. Kabia Bibi 1929 All 602. In all these it was held that the question should be decided in execution proceedings and not by a separate suit and that a separate suit would be barred by Section 47.

28. But it will be noticed that in the first three decisions, Section 234, corresponding to Section 50 of the present Code, was expressly noticed and relied on. That is, apart from any question that may arise in the carrying out of the decree, there are other questions that can be raised by a legal representative under Section 234 (Section 50) and all such questions should be decided in execution, i.e., there is the principle that all questions under Section 234 (Section 50) are also questions under Section 244 (Section 47) and all these decisions can be explained in that way. The decision in Imtiaz Bibi v. Kabia Bibi 1929 All 602, though it does not expressly refer to Section 50, purports to follow Setchand Mal v. Durga Dei (1890) 12 All 313 and must be regarded as a decision of the same kind. Excluding therefore oases involving questions raised by legal representatives which ought to be decided under Section 234 and therefore which are also regarded as questions under Section 244, can it be said that a question which a party ought not to raise in the suit should be raised and adjudicated in execution though it is not a question falling under the category of those arising under Section 234 ? Such cases may arise in mortgage suits or in money claims. In the case of money claims, unless it be a question falling under Section 234, there can be no such question raised by the judgment-debtor. He cannot have a claim petition of his own. A stranger may raise such a question in which case it would be decided under Section 278, (O. 21, Rule 58). But the judgment-debtor himself cannot raise such a question unless there is a difference in capacity. Now, if the decree is passed against him in his individual capacity but he puts forward a claim in the capacity of a trustee, it has been held that the matter is not one for decision in execution proceedings: vide Ramnathan Chettiar v. Levvai Maracayer (1900) 23 Mad 195.

29. Now it is suggested by Mr. Srinivasa Ayyangar for the respondent that the converse case is not true. That is, if a decree is passed against a person in the capacity of trustee, can he put in a claim in his individual capacity ? Mr. Srinivasa Ayyangar relies on the observations of Phillips, Offg. C.J., in Narayanan Namburdri v. Theva Amma 1927 53 MLJ 824, at p. 839:

If the claimants had been impleaded in the suit personally, they would undoubtedly be parties and would come within the meaning of Section 47 although the interest put forward in execution might not be the interest in respect of which they were made parties, for it has been held that when a trustee is sued in his capacity as trustee and in execution puts forward his individual rights he must be deemed to be a party to the suit also in his individual capacity.

30. This sentence was not necessary for the actual judgment in that case and the point decided was different. No case was cited for this dictum, and the following decisions are opposed to this dictum : In Upendranath Kalamuri v. Kusum Kumari Dasi 1915 42 Cal 440 it was held that when a person is sued as a trustee an objection can be raised in his individual capacity and that it would be in the nature of a claim petition and not a matter under Section 47. This Calcutta decision purports to follow an earlier Madras decision in Venkatasami Pillai v. Kuppayee Ammal (1904) 14 MLJ 377. Putting therefore these decisions together, Ramnathan Chettiar v. Levvai Maracayer (1900) 23 Mad 195, Upendranath Kalamuri v. Kusum Kumari Dasi 1915 42 Cal 440 and Venkatasami Pillai v. Kuppayee Ammal (1904) 14 MLJ 377, we get this conclusion, viz., where the impleading was in one capacity and questions (claims) are raised in execution objecting to the decree in another capacity they are not matters falling under Section 47 and should be decided in a regular suit and no appeal lies against an order in execution, or in other words the capacity in which a party is impleaded has got to be looked to in applying Section 47, the only exception to this rule being where the question is raised by a person as legal representative when, though there is apparently a different capacity, the question should be settled in execution. If so why should not a similar rule be applied to mortgage suits too ? If in a mortgage-suit a person is impleaded in one capacity that a stranger cannot raise any question of paramount title is well settled. But supposing instead of a stranger that same person himself has got some question of paramount title to raise, it is clear that he should not raise it in the suit. But if he should not raise it in the suit can it-be said that he should raise it in execution proceedings ? Would it not be more-logical to say that the capacity being different the matter should not be tried in execution; it is not a matter for enquiry under Section 47 and can only be raised in another suit.

31. That is, just as in applying Section 47 to the execution of money decrees the difference of capacity is a matter to be remembered, it should be equally attended to in the execution of mortgage decrees. In Krishnappa v. Periaswami 1918 40 Mad 964, in the earlier suit, the question of paramount title was not raised and an order was passed exonerating the defendant, but he was not formally struck off. It was held that Section 47 cannot apply to such a case and that the question can be agitated in a later suit. On account of a conflict between this decision and the other decisions which were followed by me and Jackson, J. in Govindarajalu Naidu v. Chinnathambi Padayachi 1928 Mad 1270' the matter was ultimately referred to a Full Bench and in Abdul Sac v. Sundara Mudaliar 1930 54 Mad 81 it-was held that in such cases Section 47 does not apply. The proper method would be to strike off the party so exonerated; but even if he is not so struck off one should look into the substance of the judgment to see whether he should be regarded in.' spirit as a party. It was held in such cases that he was not a party to the former proceedings. Now carrying the ratio decidendi of this Full Bench decision to its logical conclusion, we come to this situation, viz., when we have got a mortgage suit in which a party is impleaded as puisne mortgagee in respect of certain items, but he wants to assert his paramount title in respect of other items, so far as the question of paramount title is concerned it cannot be gone into, but because of his position as puisne mortgagee he cannot be struck off nor can an order exonerating him altogether be passed. But can this circumstance make any difference between such a case and the cases dealt with in Krishnappa v. Periaswami 1918 40 Mad 964 and Abdul Sac v. Sundara Mudaliar 1930 54 Mad 81.

32. The only proper conclusion in such a case is that only the matter in respect of which he was impleaded would form the subject matter of the suit and that the question of paramount title would not form the subject matter of the suit and could not be raised at all in the suit or in execution. Mr. Viyanna for the respondent referred to Sri Gopal v. Pirthi Singh (1902) 24 All 429, where it was held that if a person had two capacities, as puisne mortgagee and prior mortgagee, and he did not rely on his prior mortgage he afterwards lost his right as prior mortgagee. But in that case the plaintiff did not admit the prior mortgage and attacked its existence. The decision has since been explained that only in such cases would the matter be res judicata. If the prior mortgage is admitted by both parties, the decree need not provide for it and there would be no res judicata.

33. As a result of the discussion of the above authorities I come to the conclusion that if a party is impleaded in a mortgage suit by reason of one capacity and if he has got other points which he wishes to raise in another capacity but was not impleaded in the latter capacity, these other points could not only be not raised in the suit as is well recognised but could not be raised even in execution proceedings, because the capacity would then be different and should be agitated only in a regular suit. If a claim is made it will be in the nature of a claim petition by a stranger and there cannot be an appeal but only a regular suit should follow. This is the decision of the Patna High Court in Sham Lal Sahu v. Amar Prasad Choudhry 1917 39 IC 656. In the present case for instance if defendants 8 and 9 had not raised the question of their occupancy rights in the execution proceedings in the former suit, they would not be precluded from raising it now. Conversely, if they had raised it and the claim had been allowed, the remedy of the decree-holder would only be a regular suit. In the present case they obstructed the question being raised and there is no order of Court allowing the claim. Even then the question can be finally settled only in a regular suit.

34. I therefore think that Section 47 is not a bar to the consideration of the question of the occupancy rights of defendants 8 and 9 in this suit. On the merits it is true the lower Court has not given any finding on the issue relating to the occupancy rights. But Ex. 35 shows that in, respect of this village the question has been raised by other tenants and the High Court has held that the village is not an estate within the meaning of the Estates Land Act. And apart from this no other evidence has been adduced by the defendants to show that they had occupancy rights either under the Act or outside the Act. It is a question to be decided on evidence and not a pure question of law and the defendants have no evidence. Undoubtedly the burden is upon them to show that the village will be an estate falling under the Estates Land Act. They have no evidence to prove it. Ex. 35 is against them. If the question is raised that they have got occupancy rights outside the Act (and there can be occupancy rights apart from the Act) even that is again a matter of evidence. The burden of proof is on the defendants [see the decision of the Privy Council in Naina Pillai Maracayar v. Ramanathan Chettiar 1924 47 Mad 337 at pp. 354 to 357]. It must be held that these defendants have no occupancy rights. The plaintiffs will accordingly have a decree for possession. It was stated to us that if we arrive at this conclusion, the matter will be settled between the appellants and respondents 1 to 3 in respect of the matter in dispute between them. The plaintiffs are therefore given a decree for possession of all the lands sued. A decree will at once issue for possession. As to mesne profits plaintiffs are entitled to profits for three years' prior to suit and subsequent mesne profits up to three years from this date or up to delivery {whichever is earlier). The amounts of mesne profits payable by each defendant has not been ascertained by the Court below. The lower Court will now submit a finding as to amount of mesne profits prior to suit. Findings will be submitted by 31st July. Ten days for objections.

Cornish, J.

35. Having had the advantage of hearing further argument upon the matter I am of opinion that Section 47 does not bar the plaintiff's suit against defendants 8 and 9. There is no doubt of its maintainability against the other defendants who claimed occupancy rights. Section 47(1) says:

All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by separate suit.

36. Defendants 8 and 9 in the present suit represent defendants 4 and 5 in 'the suit; in which the decree was passed' and these defendants were impleaded in that suit as puisne mortgagees. There is ample authority that the question whether these defendants had a paramount title by virtue of occupancy rights in the property is not one that could have been litigated in the mortgage suit : see Bhuban Mohan Ghose v. Co-operative Hindustan Bank Ltd. 1925 29 Cal WN 784 and Gobardhan v. Mannalall 1918 40 All 584. It was not a question which could have been decided in the mortgage suit nor was an attempt made to raise it then; consequently, if it had been raised in the execution proceedings the Court must have refused to determine it in those proceedings: see Krishnappa v. Periaswami 1918 40 Mad 964 and Abdul Sac v. Sundara Mudaliar 1930 54 Mad 81.

37. Finding of Subordinate Judge, Narasapur. I have awarded mesne profits on the basis of rent that the contesting defendants would have realized from their tenants. In the kadapas filed on behalf of the plaintiff the landlord has to pay taxes for the first crop. I hold that the plaintiff shall give credit to the amount paid towards taxes with interest at 6 per cent. per annum from the dates of payment.

Ramesam, J.

38. I now come to Appeal No. 372 of 1926. As already mentioned in the former judgment, it was expected that the plaintiffs and defendants 1 and 3 would settle their differences if Appeal No. 36 of 1927 is decided; but this expectation has failed and we have to dispose of this appeal. The facts which are important for this appeal have already been summarised in the former judgment (vide the sentence beginning ' originally their idea was ' line 4 at p. 152 to ' it was decreed by Sir John Wallis, C.J. and Spencer, J. in O.S. No. 72 of 1917 ' line 3, at p. 153 of the printed judgment). But for the purpose of the present appeal we have to examine these facts with greater accuracy and in greater detail.

39. On 6th September 1914 plaintiff wrote and sent through his cousin Kusal Ramayya Ex. 1. This letter proposes that both the parties should buy the lands, but the bidding should be by the defendant. Afterwards the lands should be put up for auction as between them and one of them should take the same according to convenience, i.e., whoever bids higher than the other. This letter was handed over to the defendant by Kusal Ramayya. On 7th September, while the bid was going on, the defendant passed on the slip Ex. 1-a to Kusal Ramayya. " I agree to take Rs. 26,000 towards half of my share in O.S. No. 65 of 1908, the words 'half of my share' are a mistake for 'my half share'." When the auction was over, the defendant wrote Ex. 2-a addressed to Kusal Ramayya. He says:

I have agreed to the letter dated 6th September 1914.... So I have received the said letter...and as you have paid the entire poundage on the amount of the bid for my elder brother, you or my elder brother may subsequently within one month pay Rs. 26,000 for my right to one-half share in the said decree without my having anything to do with costs and take the mortgage property bid for, the said sum of Rs. 26,009.

40. Though this letter opens by saying ' I have agreed to Ex. 1 ' it is seen that it is not an exact acceptance of the proposal in Ex. 1, but an acceptance with some modification. It can be said to be an acceptance of Ex. 1, only in so far as the main idea is concerned, viz., that ultimately one of the brothers should be the owner, but in the details it differs. Instead of purchasing the lands in the name of both and afterwards putting it up for auction as between themselves, the idea now is that the defendant should take Rs. 26,000 and that the plaintiff should become the purchaser of the whole even from the time of the bid and in token of this the plaintiff is to pay the entire poundage fee and the defendant is to have nothing to do with any part of the costs of the sale. The learned Advocate for the respondent lays much stress on the words ' I have agreed ' in the letter of 7th September, but this is not the proper way of reading the letter. The whole letter is to be read through and then there is not the smallest difficulty about seeing that only the main idea is accepted, but otherwise there is a modification in the original proposal. Defendant 1 wrote Ex. 11 to his own son defendant 3, on 13th September, and the respondent relied on this; but I do not see how this helps him, for the defendant says:

He said that he would pay without any dispute without (torn) with him, that he alone will be responsible for the bargain and that he has nothing to do with the same and after all it was settled for Rs. 26,000 and after he consented to the same the bid was offered to the extent suggested by him....

41. We then have got Ex. 3-a dated 26th September written by the plaintiff to the defendant. This acknowledges receipt of Ex. 2-a and says:

He settled with you the price and arranged for me a sale for Rs. 26,000 in respect of your half share of the right possessed by me in the said decree excluding my half share which you purchased at Court auction.

42. This shows that the plaintiff thought that he was purchasing the half share of the defendant in the decree itself as to which no doubt there was a bid at the Court auction and which was purchased in the name of the defendant. Now it is important to observe here that though there was a purchase in the name of the defendant, the understanding was that the whole should really belong to the plaintiff and the plaintiff should pay Rs. 26,000 to the defendant, i.e., as the subject matter of the agreement was in the course of transforming itself from a decree into a right to lands, there is already an agreement between the parties that the whole of it should belong to the plaintiff, the plaintiff paying Rs. 26,000 to the defendant. The next letter that may be referred to is Ex. 6 dated 1st October by the plaintiff to Mr. Hanumantha Rao, the vakil of the parties. It runs thus:

You are aware that my brother Venkatakrishnayya sold me his share of the decree in O.S. No. 65 of 1908 on the file of the District Court of Kistna.

43. Nothing can be plainer than this and in the face of this statement all further arguments seem to be futile. The plaintiff sends the left halves of currency notes for Rs. 3,000 along with the letter as part payment towards Rs. 26,000. He also writes Ex. F on 5th October sending the right halves of the same currency notes. The defendant writes Ex. G to the vakil on 8th October. It begins thus:

Because it was settled in your presence and in the presence of our Kusala Ramayya that I should receive Rs. 26,000 from my elder brother Venkataramayya Garu for my half share of the amount jointly due to me and my elder brother Venkataramayya Pantulu Garu under the decree in O.S. No. 65 of 1908 on the file of the District Court, Kistna, and surrender my right to him, I have received this day the sum of Rs. 3,000...

44. Exhibit AA, dated 8th October, is a formal receipt for the Rs. 3000. It runs thus:

It has been arranged that we should give up our right for half share in the joint decree obtained by you and us in O.S. No. 65 of 1908 on the file of the District Court, Kistna, after receiving from you a sum of Rs. 26,000, our half share out of the amount due under the decree, and give up the entire property purchased in my name in auction in execution of the said decree and to get the certificate issued in your name.

45. Exhibits G and AA confirm Ex. 6. They make it absolutely clear that what the defendant was giving up was his right to the decree and he was getting Rupees 26,000 for it; but in the course of the negotiations as the decree has altered its form into certain property purchased in the name of the defendant, the defendant says that he will get the sale certificate issued in the name of the plaintiff. The statement that the defendant should see that the sale certificate itself is issued in the plaintiff's name shows that the plaintiff is regarded as the real purchaser in whatever name the bid was made. The result is that the bid happens to be in the defendant's name, but the whole property really belongs to the plaintiff. To remove the apparent anomaly the defendant is to do whatever can be done for the purpose of having the sale certificate issued to the plaintiff. It cannot be said that the defendant agreed to sell the lands which belonged to him at the time of the contract and was to execute a sale deed in pursuance of such an agreement. Now it is significant that there never was the smallest objection by the plaintiff to recitals in Exs. G and AA nor could there be any objection seeing that they tally with his own letter Ex. 6. Ex. 20 dated 20th October is a letter written by the plaintiff to the karnam of Pennada, one of the villages purchased and which is the subject of the present suit. There he says:

I suppose you are aware of the fact that Sri Thathacharyulugaru's lands in your village have been sold in auction and that I purchased the same. I alone am now entitled thereto.

46. Here again this document is clear to show that from the moment the auction was finished the plaintiff was regarded as the owner of the properties and the defendant had nothing to do with their ownership even though the bidding was in his name. On the same date we have got Ex. L written by Mr. Hanumantha Rao to the plaintiff in which referring to the defendant he says:

He wishes primarily to have all the money without any pro-note at all. He is willing to execute any document with or without his sons in accordance with your wishes. The decree not having been fully satisfied, if you intend to reserve the possibility of executing the decree for the balance still due, it is necessary that you must obtain a transfer deed from your brother and his sons of the half share in the decree belonging to them. The question will be who is to pay the costs of the transfer....

47. Here again the idea was that not only do the lands purchased belong to the plaintiff but that there should be a transfer of the half share in the balance of the decree to the plaintiff by the defendant. Ex. N, dated 25th October, is a letter written by the plaintiff to the vakil objecting to the high rate of interest for the intended promissory note for the balance of Rs. 23,000. Ex. M is another letter dated 5th November in which he sends the halves of the currency notes for the other Rs. 23,000. He promises to send the other halves and then adds:

But the money can only be paid after all the necessary documents have been completed and signed by my brother and his two sons-until then this is only a deposit with you.

48. Exhibit K dated 12th November is a letter written by the vakil to the plaintiff acknowledging receipt of Rs. 23,000 and saying that for getting the sale certificate in plaintiff's name a petition with affidavit has got to be filed. Then it runs thus:

For having given right for half a share in the decree after receiving a sum of Rs. 26,000 if a stamp duty is paid for Rs. 26,000 and a deed of transfer of decree is obtained you will have full right in the decree. If not, you may not have right to execute the decree in future according to law. Only certificate would be issued in your name on this petition. You can apply for delivery of possession of property. But you cannot have full right in the decree. Therefore it is better to obtain a proper transfer deed for the same.

49. This letter informs the plaintiff that it is necessary that transfer deed for the balance of the decree should be obtained; otherwise he cannot execute balance of decree. It also shows that so far as the property already purchased is concerned, the vakil believed that the plaintiff can easily get a certificate and apply for delivery of possession of the property. Unfortunately this expectation was not fulfilled. Exs. 17 and 5-a, are the affidavits prepared for the purpose of supporting the petition to get the sale certificate issued solely in the name of the plaintiff. Ex. U is a letter written by Kusal Ramayya to the plaintiff dated 22nd November. In it he refers to a statement of Venkatakrishnayya to the following effect:

It is true that right is established from the date of auction sale as written by you. Indications of dispute in future about jeroyati rights have been found out from petitions filed.

50. This refers to the possibility of some tenants raising questions of occupancy rights in the lands purchased. Ex, 5 is the petition filed for having the sale certificate issued in favour of the plaintiff and the order of the District Judge thereon to the effect that the sale certificate cannot be issued in the name of the present plaintiff who was not the bidder and though similar things seem to have happened before, the practice is unjustifiable. He dismissed the petition. Ex. B-l is the draft of the conveyance to be executed by the defendant to the plaintiff. It is in the handwriting of Mr. Hanumantha Rao's clerk but was corrected by him in some places. The plaintiff received it and sent a final draft of the conveyance in the handwriting of his own clerk at Madras and this is Ex. 16. It is noticeable that these two documents are not described as sale deeds. B-l runs thus: "Deed of assignment transferring the right to a half share..." Similarly Ex. 16 is described as a deed of transfer. The reason why they were not called sale deeds and described as transfer deeds is clear on the above facts. By reason of the contemplated deed the defendant is not conveying any right which he had to the plaintiff but is only executing a formal deed so as to show the apparent title in the plaintiff whereas up to then it rested with the defendant. Ex. J is a postcard dated 12th February 1915 by the plaintiff's clerk to him saying that a stamp paper for Rs. 260 was purchased for the deed. Ex. 0 dated 31st May 1915 which is a letter written by the plaintiff to the vakil says:

I even asked that further execution proceedings such as taking delivery, etc., through Court might be proceeded with in Krishnayya's name.

51. This sentence obviously implies that the proceedings are really his own though they are in Krishnayya's name. After further wrangling and disputes about interest, the Rs. 23,000 was returned to the plaintiff and the defendant sent a sale deed to the plaintiff, Ex. B on 4th August 1916. Meanwhile the execution proceedings and the partial obstruction to delivery as described in Ex. 13 (a) had happened. The plaintiff refused to take the sale deed. Then followed the suit on the original side as already described which ended in a decree in favour of the present defendant in appeal. In my opinion the result of the above transactions is that it cannot be said that the defendant entered into a contract to sell or that the conveyance which he was to execute can be described as a sale of lands within the meaning of Section 55, T.P. Act. On the facts there is no scope for importing the covenants necessarily implied in a contract of sale unless there is a contract to the contrary according to Section 55, nor is there any scope for applying the decisions on that section. The Subordinate Judge deals with this part of the case in paras. 28 to 43 of his judgment. I am unable to agree with several of the remarks made by him. In para. 29 he refers to statements of Wallis, C.J. and Spencer, J. in the Original Side Appeal. In my opinion they are irrelevant for our present purpose. Those learned Judges were dealing only with the question whether there was any subsisting contract and whether the plaintiff in that suit (the present defendant) was entitled to recover Rs. 23,000 on the basis of a subsisting contract. The precise nature of the contract was not in issue before them and could not have been the subject of any consideration by them. Casual observations in that judgment are therefore of no use in the present case. In para. 31 at p. 100 after referring to Ex. G, the learned Subordinate Judge observes: "This does not bear out the contention of the vakil for defendants 1 to 3."

52. Frankly I am unable to follow this statement. He states his conclusion as to the nature of the contract in para. 32 that the contract as finally understood by the parties related to defendant 1's interest in the decree as also his interest in the lands purchased at the auction sale. I am unable to agree with this sentence. Defendant 1 had no interest in the lands purchased at the auction sale which were all purchased for the plaintiff. Only the bid happened to be in his name. In para. 36 he makes a remark "Till August 1916 defendant 1 did not choose to execute a sale deed." The plaintiff had withdrawn his Rs. 23,000 and also his stamp paper. Defendant 1 was not bound to incur any further expenses in connexion with this conveyance. That is why he waited and he is not responsible for the delay. If ultimately he sent a sale deed in August 1916, that is because he wanted to be on the safe side before he filed his suit on the original side. In my opinion the plaintiff's objections to the conveyance deed Ex. B, as stated in para. 36 of the Sub-Judge's judgment, are untenable because it is not really a sale deed transferring the vendor's title to the vendee. In para. 37 the Subordinate Judge recognises that the defendant would have no objection to execute a deed at the plaintiff's expense; but in the course of the paragraph he observes:

It was incumbent on defendant 1 to have a clause in the sale deed Ex. B that he would in his turn put plaintiff in possession of the properties delivered to himself.

53. This again is a mistake. Except that the proceedings are to be carried on in the defendant's name there is no question of any delivery to himself or of a re-delivery by him to the plaintiff. All the proceedings are really plaintiff's proceedings but carried on in the defendant's name. As a matter of fact Ex. 13 shows that there was a delivery of possession so far as the judgment-debtor is concerned and there is no false recital in the sale deed as the Subordinate Judge seems to think in para. 38 of his judgment. In this paragraph he recognises that the defendant does not covenant in the usual form about title and observes:

In such circumstances I do not think that the ordinary liabilities of the vendor such as that he is bound to give the covenant for, title and quiet enjoyment can also be said to exist in the transaction.

54. But after his having said this, I am unable to understand how he comes to the other conclusions in the judgment. In paras. 39 to 43 he discusses the plaintiff's claim for damages. In para. 40 he says:

Defendant 1 had contracted to sell his hall share in the lands purchased at the Court sale. In respect of this half share the purchase by plaintiff 1 from defendant 1 should be deemed as a transaction of a private sale and purchase.

55. This sentence is hopelessly inconsistent with the sentence I have already quoted from para. 38. In para. 41 he observes:

Defendant 1 took no steps either to get the obstruction removed or to proceed by way of a suit.

56. The reply to this is that defendant 1 is under no such duty. The proceedings are all of the plaintiffs. As a matter of cooperation which is one of moral duty on the part of the defendant he was willing to give any papers or to sign any petitions which may help the plaintiff in his work, but it is all the plaintiff's business and not that of the defendant. I am therefore of opinion that the Subordinate Judge's conclusion in para. 41:

His duty in respect of his half share in the lands which he had to convey to plaintiff 1 remains unfulfilled is erroneous. Similar remark applies to the conclusion at the end of para. 42:

I do not therefore consider that by reason of his having attempted to take delivery or by reason of the fact that he had already taken possession of the Guntrakoderu lands, defendant 1 could be absolved altogether of his duty to apply for delivery and get possession and then put plaintiff 1 in possession.

57. I also disagree with his conclusion in para. 43, that defendant 1 failed to execute a proper sale deed or conveyance. In my opinion Ex. B is a proper conveyance, and if there are any omissions of any survey numbers or anything of that kind, though it conforms to the sale certificate, defendant 1 is still willing to give any paper which plaintiff 1 wants. In my opinion there is no ground in this case for the plaintiff seeking to recover any damages from the defendant. The result is that Appeal No. 372 of 1926 is allowed and the plaintiff's suit dismissed with costs so far as defendants 1 to 3 are concerned in both Courts. As to the other defendants, the point is covered by the judgment in A.S. No. 36 of 1927. In the lower Court the appellant will get half costs. In appeal it will be on the valuation of the appeal as on Rs. 44,222.

Appeal No. 105 of 1927.

58. This is an appeal against a decree of the same Subordinate Judge dismissing the suit by the plaintiff therein who is defendant 1 in the main suit for recovery of the costs of the stamp paper and registration charges. The Subordinate Judge has dismissed the suit following his findings in the main suit. It is conceded that the decision in this appeal should follow the findings in the main appeal. Accordingly the appeal is allowed and the plaintiff's suit decreed with coats throughout and subsequent interest at 6 per cent till date of payment, but the pleader's fee in the High Court will be calculated not on the minimum basis in the High Court but on the minimum basis in the District Court.

Appeals Nos. 372 of 1926 and 105 of 1927.

Cornish, J.

59. I entirely agree. Upon the documentary evidence I think it reasonably clear that defendant, when bidding at the auction, was bidding on behalf of the plaintiff. Instead of a joint purchase which was proposed by plaintiff in Ex. 1, and which if carried out would have made the brothers tenants-in-common of the land purchased, it was agreed that the defendant should give up his half share in the decree for Rs. 26,000 and that plaintiff should take the property which the defendant was to bid for. This is the purport of the correspondence, Exs. 2-a and 3-a, which passed between the parties, and it is made perfectly clear by the terms of the receipt, Ex. AA, given by defendant and accepted by the plaintiff for the payment of Rs. 26,000. It was not a purchase by defendant with a view to a re-sale to plaintiff of his half share in the lands purchased at the sale, but a purchase of the whole land by defendant for plaintiff, the defendant having given up his right in the decree for Rs. 26,000. This is also evident from the proceedings, taken by defendant to have the Court certificate of sale issued in the name of the plaintiff. If the District Judge had taken, a less narrow view of his powers under Order 21, Rule 94 the probability is that there would have been no difficulty in the performance of the contract. But the accident of the District Judge's refusal to grant a certificate except in the name of defendant as the declared purchaser made a formal conveyance by the defendant to plaintiff necessary in order to clothe plaintiff with the insignia of title. It was for this purpose that Ex. B-l and Ex. 16 were prepared. They are called draft sale deeds. A conveyance usually follows the completion of an agreement to sell land. That was not the case here. Even if these instruments had been executed by defendant they could not have converted the defendant into the seller of the property. He was not the seller of the land. There was therefore no scope for Section 55(f), T.P. Act.

60. (Appeal No. 36 of 1927 having stood over for consideration the Court delivered the following judgment:) Ramesam, J.

61. The main part of this appeal was disposed of by us on 23rd March and 24th April 1933. We then called for a finding on the amount of mesne profits to which the plaintiffs are entitled for three years prior to the suit and subsequent mesne profits up to the delivery of possession by the defendants. We are informed that though final decrees have not been drawn up in this and the connected cases, the defendants in possession vacated the lands soon after we stated our conclusions in the year 1933. The Subordinate Judge has now returned his finding as to the amount of mesne profits. Both parties have filed objections. It must be admitted that the Subordinate Judge's judgment is a carefully written judgment and prima facie leaves the impression that not much of it ought to be modified. In para. 2 of his finding he notes the fact that the claim now made by the plaintiff is highly exaggerated and far exceeds the claim made in the plaint.

62. It will be convenient now to consider the various classes of lands separately. We will take them up in the order in which they were taken up by Mr. Somasundaram, the learned advocate for defendant 5. Item 1 argued by him relates to the garden lands. Of these gardens No. 45 is 18 acres in extent and it is called Bubu Thotta. The other lands are Nos. 40, 52, 53 and 54 and are 9 acres in extent. The oral evidence on both sides generally leaves the impression that Bubu Thotta is superior to the other gardens. D. W. 6 says that in good years Rs. 100 would be the income from it. The Subordinate Judge notes that the other witnesses for the defendant, viz. D. Ws. 9, 12 and 13 have grossly under-estimated the yield. We may take it that in bad years the Bubu Thotta was yielding Rs. 50. The Subordinate Judge awards a flat rate of Rs. 90 per year for this garden. We think it may be reduced to a flat rate of Rs. 75 per year. As to the other gardens the Subordinate Judge awards at the rate of Rs. 4 an acre or Rs. 36 per annum. We think it may be reduced to Rs. 3 an acre or Rs. 27 per annum. Then we have got a number of dry lands which are described as garuvas for which the plaintiff relying on Ex. 41 of the year 1906, which was for a rent of Rs. 4 an acre, claims that the rents must have gone up in subsequent years and accordingly demands a higher rate for the years in dispute.

63. The Subordinate Judge notes that such increase has not been substantiated by evidence. Mr. Somasundaram argues that the garuvas must all be regarded as mere pasture lands and that only Re. 1 or Rs. 2 an acre ought to be given. The Subordinate Judge has given at the rate of Rs. 5 an acre. We think it will be safe to reduce the rate for the garuvas to Rs. 4 an acre on the basis of Ex. 41. We now come to the wet lands. The plaintiff claims at the rate of 10 bags an acre in respect of some of the items and 11 bags an acre in respect of item 1. It is said that, as the whole matter has been under litigation, the defendants have not cultivated the lands even in the manner in which lands are normally cultivated. For instance, cultivators in that part of the country improve the land periodically by the use of pati earth which is a kind of silt strengthening the productivity of the land. The Subordinate Judge comes to the conclusion that this neglect in not carrying out the ordinary acts of husbandry cannot in the least be justified and he finally awards at the rate of 5 bags an acre for the lands north of the road and 4 bags and 3 bags for the two blocks-south of the road. We do not see any reason to interfere with the conclusion and award of the Subordinate Judge. As to the prices of paddy up to the end of 1930 they range from Rs. 6 to Rs. 9 and in the year 1918 (the year of control) the prices were even much higher. The average for these would be much above Rs. 6, but having regard to the fact that we have got three years of depression viz. 1931, 1932 and 1933, the Subordinate Judge has given a flat rate of Rs. 6 a bag for all these years. We think that the rate given by him may be accepted and need not be interfered with.

64. It has been pointed out to us that in the case of two of the wet items (16, 18 and 19) they had the benefit of water supply only from the year 1924 onwards and in the case of item 1 (17) it had the benefit of water supply only from 1929 and that these lands ought not to be charged with wet rate until those years. The Subordinate Judge notes this contention but does not expressly say anywhere that he accepts it. In the case of these lands the learned advocate for the respondent concedes that they should be charged as wet lands only from the time they had the benefit of the water supply and prior to that they may be charged as garuvas at the rate of Rs. 4 an acre. The above conclusions apply also to the lands of the other defendants. As to the eighth and ninth, they are liable for the profits of 1, 2, 3 and 27. Item 24 is admitted to be a dibba and they will not be charged with profit. As to items 1 to 3 evidence shows that they are cultivated and transplanted later. The liability is reduced from 5 bags to 4 bags.

65. Certain items of land are mentioned in para. 14 of the plaint. These were not specifically enumerated in the sale certificate; but it is now conceded that they are all covered by the sale certificate. In respect of some of these items, viz. 67/3 and 67/4, defendant 8 admitted possession but raised pleas on the merits which have been disallowed. Item 67/3 is a dibba unfit for cultivation. The plaintiff is therefore entitled to profits on 67/4 from defendant 8. As to the other items mentioned in para. 14 of the plaint, though the plaintiff is entitled to possession of those items, as no particular defendant was mentioned as being in possession of them, he is not entitled to any mesne profits from any of the defendants in respect of those items. The Subordinate Judge has awarded interest at the rate of six per cent per annum and has fixed certain dates for the purpose of calculating interest for each year. This is not a case in which the defendants should escape payment of interest altogether because they claimed possession of lands without any right of their own; but in view of the hardship due to the accumulation of profits for several years and the economic depression now prevailing, we reduce the rate to four per cent per annum.

66. As to items 4, 5, 8, 9, 30 and 32 to 34, defendant 8 originally set up his own right and defendants 13, 14 and 17 were put forward as the occupancy ryots of the land. But afterwards it was admitted that defendant 8 was in possession of items 1, 2, 3, 24 and 27 only and defendant 5 was admitted to be in possession of 4, 5, 8, 9, 30 and 32 to 34 and he will be liable for the profits on the above basis. Defendants 13 and 14 will be exempted from liability. Subject to the above modifications the findings of the Subordinate Judge are confirmed. There will be a decree for possession and mesne profits from the respondents defendants other than defendants 1 to 3, 6, 7, 13 and 14 with costs throughout proportionate to the extent of the respective defendants. In estimating the costs, the printing charges, that is the printing charges prior to remand (inserted by order of Court dated 22nd July 1935) for the documents (except Exs. 12 and 13 and A and B), will be excluded. In A.S. No. 36 of 1927 the appellant will pay the costs of respondents 1 to 3 on Rs. 52,435.