Karnataka High Court
Goudappa Appaya Patil vs Shivari Bhimappa Pattar And Another on 10 July, 1990
Equivalent citations: AIR1992KANT71, AIR 1992 KARNATAKA 71, (1991) ILR (KANT) 3288, (1992) 2 CIVLJ 230, (1992) 1 CURCC 223
ORDER K. A. Swami, J.
1. This appeal by plaintiff 1 is preferred against the judgment and decree dated 1-4-1980 passed in R.A. No. 99/76 by the Principal Civil Judge, Chikodi confirming the judgment and decree dated 25-8-1976 passed in O.S. No. 24/73 by the Principal-Munsiff, Hukeri.
2. Respondent 1 is the defendant and respondent 2 is plaintiff 2. The appeal is referred to a Division Bench on the ground that it involves a question as to whether the doctrine of lis pendens could be extended to a proceeding before a High Court under Arts. 226 and 227 of the Constitution.
3. The appellant and respondent 2 have filed the aforesaid suit for a declaration that they are the owners of the land bearing Block No. 68 measuring 3 acres 36 guntas, phot kharab 16 guntas, situated at Haiti Alur village in Hukeri Taluk and for a permanent injunction restraining the defendant and the persons claiming through him from disturbing the plaintiffs of their peaceful possession and enjoyment of the suit land.
4. The plaintiffs claim that one Sri Revaji Revappa Pattar (hereinafter referred to as Revaji) was the owner of the suit land. He sold the same to the plaintiffs on 27-8-1966 under a registered sale deed for a consideration of Rs. 5000/- in order to pay off the Tagai loan due to the society. The further case of the plaintiffs is that pursuant to the sale in their favour, Revaji handed over possession of the suit land and since then they have been in possession and enjoyment of the same; that the auction sale of the suit land held for recovery of the tagai loan was not valid; that Revaji sold the suit land to the plaintiffs after the order passed by the Mysore Revenue Appellate Tribunal (for short MRAT) in R.A.B. No. 63/64.
5. The defendant contested the suit and inter alia contended that on the date of the sale i.e., 27-8-1966 effected by Revaji, he had no saleable interest, inasmuch as, the auction sale was confirmed long before that date; that the sale of the land in favour of the plaintiffs by Revaji was also hit by lis pendens because the defendant had filed W.P. No. 2332/65 in the High Court challenging the order of the MR AT passed in RAB 63/64 and the sale was effected during the pendency of that writ petition; that the writ petition was ultimately allowed and the order of the MRAT was set aside and those passed by the Assistant Commissioner, Deputy Commissioner and the Divisional Commissioner affirming the auction saie were restored; therefore, on the date of the sale Revaji had no saleable interest in the suit land.
6. On the basis of the pleadings of the parties, the trial court framed and tried the following issues:
1) Whether plaintiffs prove that they are the owners of the suit property;
2) Whether plaintiffs prove that they were in lawful possession of the suit property on the date of suit?
3) Whether defendant proves that the suit filed by the plaintiffs is not maintainable as contended by him in para 9 of the written statement?
4) Whether the sale deed alleged to have been executed by Revaji Revappa Pattar in favour of the plaintiffs is hit by the principles of lis pendense?
5) Whether the plaintiffs are entitled to the reliefs of declaration and injunction sought?
6) What relief?
The trial Court answered issue Nos. 1, 2, 4 and 5 in the negative and issue No. 3 in the affirmative. Consequently, the trial Court dismissed the suit. Thus the trial Court held that the plaintiffs failed to prove that they were in lawful possession of the suit land on the date of the suit. It also further held that the sale in favour of the plaintiffs was not hit by the doctrine of lis pendens.
7. In the appeal preferred by plaintiff 1, the lower Appellate Court raised the following points for determination:
1) Whether the plaintiffs have acquired any right, title and interest in the suit land by the sale deed dated 27-8-1966 executed by Revaji?
2) Whether the sale in favour of the plaintiffs under Ex. P. 1 on 27-8-1966 is hit by the doctrine of lis pendens as the same was taken when the W.P. No. 2332 of 1965 was pending in the High Court?
3) Whether the plaintiffs are entitled for declaration and injunction?
4) Whether any interference with the lower Court's judgment and decree is necessary?
Points 1, 3 and 4 were answered in the negative and point 2 was answered in the affirmative. Consequently, the appellate Court affirmed the decree as the trial Court.
8. In this appeal, Sri S. K. Joshi, learned counsel for the appellant has advanced two contention: (1) That the lower appellate Court is not justified in law in holding that the proceeding instituted in this Court under Arts. 226 and 227 of the Constitution against the order of the MRAT amounted to a "proceeding" within the meaning of S. 52 of the Transfer of Property Act and therefore the sale effected by Revaji on 27-8-1966 was hit by lis pendens; (2) That the Courts below were also not justified in holding that Revaji had no saleable interest on 27-8-1966 in the suit land when admittedly he was the owner of the suit land.
9. The correctness of these two contentions are disputed by Sri Ajit Gunjal, learned counsel for respondent 1 auction-purchaser.
10. Before we raise the points for determination, we may also point out that Revaji died on 2-11-1966 immediately after he effected the sale of the suit land on 25-7-1966 in favour of the plaintiff. In the Writ Petition No. 2332/ 1965 filed by the 1st respondent (defendant in the suit) the son of Revaji, i.e., Sri Gangappa Revappa Pattar was brought on record as respondent 1(a) as Revaji died during the pendency of the writ petition. Order passed in W.P. No. 2332/1965 dated 9-2-1971 is produced in the suit and marked as Ex. D. 7. The order passed by the MRAT dated 14-6-1965 in RAB No. 63/64 has also been produced and marked in the suit as Ex. D. 6.
11. In the light of the contentions urged, the following points arise for consideration in this appeal.
1) Whether the proceeding instituted by filing W. P. No. 2332/65 in the High Court under Arts. 226 and 227 of the Constitution was a proceeding as contemplated in S. 52 of the Transfer of Property Act?
2) If so, whether the order obtained in W. P. No. 2332/65 was collusive and whether the right to immovable property i.e., Block No. 68 of Hatti Alur village was directly and specifically involved in the writ petition?
3) Whether on 27-8-1966 Revaji had a saleable interest in the suit land bearing Block No. 68 of Hatti Alur village?
12. Point No. 1 :-- It is not in dispute and it is also found by the Courts below that W.P. 2332/65 was instituted before this Court under Arts. 226 and 227 of the Constitution challenging the order dated 14-6-1965 passed in revision bearing RAB No. 63/64 by the M.R.A.T. We have already pointed out that the order of the MRAT and of this Court are produced and marked in the suit as Exs. D. 6 and D. 7 respectively. The subject matter of the revision in RAB No. 63/64 of the file of the MRAT, Bangalore and W P. 2332/65 was as to the validity of the auction saie of the suit land held on 12-6-1963 for recovery of tagai loan due from Ravaji to a Society. Thus, in the writ petition right to land involved in the suit in question was directly and specifically involved. S. 52 of the Transfer of Property Act reads thus:
"During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-- For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
The point for our consideration is as to whether a writ proceeding is a proceeding as contemplated under S. 52 of the Transfer of Property Act. There is no doubt that a writ proceeding is not a suit. There is also no doubt that it may be a civil or a criminal proceeding depending upon the facts and circumstances of the case and nature of the relief sought for. However, it is necessary to point out that in a given case a proceeding under Arts. 226 and 227 of the Constitution may neither be a civil nor a criminal proceeding. It may be some other proceeding. It all depends upon the facts and circumstances of each case and the relief sought therein. In the instant case in Writ Petition No. 2332/65 the proceeding was of a civil nature, because civil right conferred by civil law was in question.
13. In S. A. L. Narayan Row v. Ishwarlal Bhagwandas , the expression "Civil Proceeding" occurring in Art. 133 of the Constitution is considered. The Supreme Court has held as follows at page (1820):
"The power to issue a certificate under Art. 133 may be exercised only in respect of judgment, decree or final order of a High Court in a civil proceeding, and the order passed by the High Court disposing of the petition filed by the assessee for the issue of a writ under Art. 226 is a judgment. But Mr. A. V. Vishwanath Sastri for the assessee contended in the first instance that the expression "civil proceeding" in Art. 133 only means a proceeding in the nature of or triable as a civil suit and a petition for the issue of a high prerogative writ not being such a proceeding, against the order passed by the High Court no appeal lay to this Court with certificate under Art. 133. In the alternative, Counsel contended that even if a proceeding for the issue of a writ under Art. 226 of the Constitution may in certain cases be treated as a civil proceeding, it cannot be so treated when the party aggrieved seeks relief against the levy of tax or revenue claimed to be due to the State."
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"We have already set out our reasons for holding that a proceeding taken for recovery of a tax is not "other proceeding" under Art. 132(1) : such a proceeding is a civil proceeding within the meaning of Art. 132(1). The object of referring to "other proceeding" in that clause is merely to emphasize that adjudications made in proceedings which are not included in the description civil or criminal would still attract the provisions of Art. 132(1) in case they raise a substantial question of law as to the interpretation of the Constitution. A proceeding in which relief is claimed against action of revenue authorities is included in the civil proceeding and not in "other proceeding" within the meaning of Art. 132(1), and an aggrieved party's right to appeal to this Court from orders in those proceedings is exercisable in the same manner as it would be in the case of a decree, order or judgment in any other civil proceeding.
A large number of cases have arisen before the High Courts in India in which conflicting views about the meaning of the expression "civil proceeding" were expressed. In some cases it was held that the expression "civil proceeding" excludes a proceeding instituted in the High Court for the issue of a writ what ever may be the nature of the right infringed and the relief claimed; in other cases it has been held that a proceeding resulting from an application for a writ under Art. 226 of the Constitution may in certain cases be deemed to be a "civil proceeding", if the claim made, the right infringed and the relief sought warrant that inference: in still another set of cases it has been held that even if a proceeding commenced by a petition for a writ be generally categorised as a civil proceeding, where the jurisdiction which the High Courts exercise relates to revenue, the proceeding is not civil."
XX XX XX XX XX XX XX "On a careful review of the provisions of the Constitution, we are of the opinion that there is no ground for restricting the expression "civil proceeding" only to those proceedings which arise out civil suits or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil, rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutgs. The preliminary objection raised by counsel for the assessee must therefore fail."
Therefore, it is clear that a proceeding instituted under Art. 226 and 227 of the Constitution which is not collusive and in which any right to immovable property is directly and specifically in question, is a proceeding for the purposes of S. 52 of the Transfer of Property Act.
14. It may also be pointed out that Art. 226 of the Constitution specifically provides that notwithstanding anything in Art. 132 every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part 111 and for any other purpose. The words any other purpose have been interpreted for enforcement of any legal right. Therefore, W.P. No. 2332/65 was a proceeding in which enforcement of a legal right concerning to the immovable property was in question. However, it is contended that the words any 'suit' or 'proceeding' occurring in S. 52 of the Transfer of Property Act must be read as contemplating either a suit or a proceeding instituted in an ordinary civil court. In other words, it is contended that the word 'proceeding' occurring in S. 52 of the Transfer of Property Act only relates to original proceeding. It is necessary to point out that a proceeding under Arts. 226 and 227 of the Constitution apart from being a civil or criminal or some other proceeding depending upon the nature of the right enforced in that proceeding is also an original proceeding. No doubt it is not an ordinary original jurisdiction but it is an extraordinary original jurisdiction. It is an independent proceeding and not a continuation of the proceeding before the authorities below. We need not go into the question whether there is a difference between a proceeding purely under Art. 226 and a proceeding under Art. 227 of the Constitution because W.P. No. 2332/65 was filed under both the Articles. If the contention of the learned Counsel for the appellant that Sec. 52 of the T.P. Act does not contemplate writ proceeding or does not take into its fold that writ proceeding, is accepted, it would lead to disastrous consequences. In many cases it may so happen that even when the petitioner succeeds in the writ petition, the alienation if any made during the pendency of the writ petition shall have to remain unaffected, the order passed under Arts. 226 and 227 of the Constitution would be rendered infructuous, or ineffective. The parties would be deprived of the fruits of the litigation. In this connection, we must also remember the principle underlying the doctrine of lis pendens. The underlined principle is that no immovable property which is a subject matter of the litigation can be transferred or dealt with by any parly to the suit or proceeding to the detriment of the other party. In this case, Sri Revaji who sold the suit land to the plaintiff was a party to the writ petition. He could not have sold the suit land without the permission of the High Court as the right to the suit land was directly and specifically involved in the proceeding before the High Court in W. P. No. 2332/65. Thus, taking into consideration all the aspects, we are of the view that a proceeding instituted under Arts. 226 and 227 of the Constitution which is not collusive and in which any right to immovable property is directly and specifically in question will be a proceeding attracting Sec. 52 of the Transfer of Property Act and as such the property concerned in the proceeding cannot be tians-ferred or otherwise dealt with by any party to the proceeding so as to affect the rights of any other party thereto under an order which may be passed therein, except under the authority of the High Court and on such terms as it may impose. Point No. 1 is answered accordingly.
15. Point No. 2:-- It has already been pointed out while dealing with point No. 1 that a right to the suit land was directly and specifically in question in W.P. No. 2332/65. Therefore, once again it is not necessary to deal with this aspect. As far as the question as to whether the proceeding in W. P. No. 2332/65 was a collusive proceeding or not is concerned, it need not detain us any longer because it is not pleaded by the plaintiffs that the writ proceeding was a collusive proceeding and the order passed (herein was a collusive order. No doubt, the writ petition was allowed by filing an affidavit by Gangappa Revappa Pattar, the son of Revappa that the matter in dispute in the case had been settled out of Court amicably and that he was willing to submit to an order setting aside the order of the Mysore Revenue Appellate Tribunal and restoring that of the Deputy Commissioner. Accordingiy, this Court quashed the order of the MRAT and restored that of the Deputy Commissioner. A mere fact that the parties entered into compromise and obtained an order in a proceeding does not necessarily lead to an inference that a proceeding is a collusive proceeding.l We may point out here that when on the date the writ petition was filed in the year 1965 by the auction purchaser, the plaintiffs were not in the picture. The auction purchaser was an aggrieved person Because MRAT by the order dated 14-6-1965 passed in revision in RAB No. 63/64 had set aside the auction sale on a condition that Revaji should deposit the amount due within 30 days from the date of the order with the Assistant Commissioner, Jamkhandi. Therefore, the auction purchaser was entitled to challenge it. Hence the filing of writ petition No. 2332/65 by the auction purchaser against Revaji was not at all collusive. Under what circumstances, the son of Revaji filed the affidavit stating that the dispute between the parties had been settled out of Court amicably and to set aside the order of the MR AT and to restore that of the Deputy Commissioner, no evidence is adduced by the parties. In fact there is no pleading in this regard. Therefore, we do not consider it necessary to go into this question. Hence, we hold that it is not proved by the plaintiffs that the writ proceeding in question was collusive. The right to the suit land was directly and specifically involved in the writ petition point No. 2 is answered accordingly.
16. Point No. 3:-- It is found by the Courts below that on 12-6-1963 the suit land was sold by public auction by the Revenue Authority under the provisions of the Karna-taka Land Revenue Act, 1964 for recovery of tagai loan from Revappa -- the owner of the land. The 1st respondent was the highest bidder having offered a sum of Rs. 4500/-. He deposited the amount well in time. No application for setting aside the sale was filed by him within 30 days. On 22-7-1963 Revaji filed an application for setting aside the sale on the grounds of fraud and material illegalities committed in the conduct of sale. The Deputy Commissioner confirmed the sale. The order of the Deputy Commissioner was affirmed by the Divisional Commissioner on 27-2-1964 in RB/TAG/AP-45. The order of the Divisional Commissioner was challenged before the MRAT in Revision RAB. No. 63/64 by Revaji. The MRAT though came to the conclusion that there was no merit in the revision petition, nevertheless it passed a conditional order in the following terms:
"The loan is of the year 1949 and the records of the case go to show that the party has been a persistent defaulter and has been putting up all sorts of obstacles. He has not made any substantial payments and most of his objections have all been frivolous. However, it has been urged before us that the property is a very valuable one and that the applicant will endeavour to pay up the amount of the dues within date of payment and that he is also prepared to pay compensation to the purchaser at 5 per cent of the amount deposited. Though the conduct of the appellant does not justify any indulgence, we, in exercise of our powers under S. 179, direct that if the applicant deposits within 30 days from today all the amount due till then towards the loan and also deposits with the Assistant Commissioner, Jamkhandi, the sale shall stand set aside under S. 179 of the Land Revenue Code and that if no such deposit is made, the sa!e shall stand confirmed. Subject to the above conditional order made in the exercise of our discretion under S. 179 of the Bombay Land Revenue Code, the revision petition is dismissed."
It is the validity of this order which was challenged by the 1st respondent -- auction purchaser in W.P. No. 2332/65 which was allowed on 9-2-1971. The order passed by the High Court reads as under:
"The contesting first respondent in this writ petition having died, his son has come on record as his legal representative. He has now filed an affidavit stating that the matter in dispute in the case has been settled out of Court amicably and that he is willing to submit to an order setting aside the impugned order of the Revenue Appellate Tribunal and restoring that of the Deputy Commissioner. Mr. Mohandas Hegde appearing for the petitioner's Counsel has no objection to such an order being made.
We, therefore, quash the order of the Revenue Appellate Tribunal impugned in this Writ petition and restore that of the Deputy Commissioner.
The parties will bear their own costs in this writ petition."
These facts are not in dispule. From the order of the High Court it is clear that the order passed by the Deputy Commissioner confirming the sale was restored. Thus the confirmation of sale made by the Deputy Commissioner in No. CDP/TAG/AP-7 dated 6-1-1964 became final. The sale in question was effected by Revaji in favour of the plaintiffs on 27-8-1966 long after the confirmation of the sale.
17. The contention is advanced on behalf of the appellant that as no sale certificate was issued till 9-2-1972 the title in the land did not pass to the auction purchaser till 19-2-1972. Therefore, Revaji had a subsisting title in the suit land on 27-8-1966, the date on which he executed the sale deed in favour of the 1st plaintiff-appellant. It appears to us that it is not possible to accept this contention. This Court in H.K. Dasappa Setty v. Kalidasappa Setty 1968(1) Mys L. J. 200 has considered the question as to when the title in the immovable property sold in auction sale could be held to have been transferred to the auction purchaser. On considering the provisions contained in Rules 92 to 94 of O. 21 of C.P.C., this Court has held thus:
"Now, the expression 'instrument of sale' has to be understood as an instrument by which there is a sale by one person to another and the word 'sale' connotes a transaction by which there is a transfer of ownership by one person to another.
S. 164 of the Panchayat Act speaks of a transfer of inimoveable properly, and, the question is whether the certificate of sale is an instrument by which there was transfer of immoveable property. It becomes clear from the relevant provisions of the CPC that a certificate of sale is not an instrument of sale. When a sale is held under the provisions of the CPC under an order made by the Court under Rule 82 of Order XXI of that Code, that sale becomes absolute when an order is made under R.92 which provides that where no application is made for setting aside the sale or when such an application is made and disallowed, there shall be a confirmation of the sale, whereupon the sale shall become absolute.
Sub-rule (3) of that rule provides that no suit to set aside an order by which the sale is confirmed shall be maintainable. R. 94 which directs the grant of a certificate of sale reads:
"94. Certificate to purchaser.-- Where a sale of immoveable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such, certificate shall bear date-the day on which the sale became absolute."
What becomes clear from the statutory provisions to which I have so far referred is that the sale becomes absolute when an order of confirmation is made under R. 92 and it is then that there is a transfer of ownership in the inimoveable property sold, although, such transfer shall take effect from the date of the sale whatever may be the date of confirmation. It becomes effective from the date of the sale as provided by S. 65 of the CPC. The sale certificate which is directed to be granted by Rule 94 docs not transfer the ownership in the property which stands transferred in consequence of the confirmation of the sale. It only specifies the property sold and the name of the person declared to be its purchaser.
It is thus clear that title passes to the purchaser not under the certificate of sale but by an order of confirmation and the sale certificate merely transmits conclusive information as to what was the property sold and who was the purchaser."
No doubt, in H.K. Dasappa's case the sale was conducted under the provisions of 0.21 of C.P.C. by a Civil Court. Whereas we are in this case concerned with regard to the sale held under the provisions of the Karnataka Land Revenue Act, 1964, by the Revenue Authorities. In Nagesh alias Nagappa Gana-pathi Hegde v. Syndicate Bank, ILR 1981 (1) Kar 477, the question arose as to when the title in the immoveable property could be held to have been transferred to the auction purchaser in the auction sale held by the Revenue Authorities under the provisions of the Karnataka Land Revenue Act. Following the decision in H. K. Dasappa's case, one of us (KASJ) held as follows:
"The learned Counsel for the 1st respondent place particular stress on the expression found in S. 179 of the Act, that 'such certificate shall be deemed to be a valid transfer of such property and contended that it was only on issue of sale certificate the title stood transferred to the auction purchaser and not before that. By the aforesaid deeming provision, what Section 179 of the Act attempts to prc-vide is to confer the status of a deed of transfer on the sale certificate. The title in the property sold in public auction under Chapter XIV of the Act, passes to the auction-purchaser on the confirmation of sale and the sale certificate under S. 179 of the Act, is issued only on confirmalion of the saie under S. 177 of the Act. Thus, the issue of a sale certificate is the consequence of confirmation of sale. When once the sale is confirmed under S. 177 of the Act, the right, title and interest of the defaulter in such property shall cease and the same shall stand transferred to the auction-purchaser. Section 182 of the Act, by providing that the person who has puchased any land and to whom a certificate of purchase has been granted shall not be liable for the land revenue in respect of the land for any period prior to the date of sale, inferentially provides that the liability of the person to pay the land revenue of the land in respect of which he is granted a certificate of purchase arises from the date of sale. If, as contended by the learned Counsel for the 1st respondent, the title is to pass to the auction-purchaser only on issue of a certificate of purchase under S. 179 of the Act, then the liability of the auction-purchaser to pay the land revenue would arise only from the date of grant of a certificate of puchase and not from the date of sale. Therefore, S. 179 of the Act, even though it contains of deeming provision, the effect of which is the same as that of R. 94 of 0. 21 of the C.P.C. Accordingly, I am of the view that the enunciation made in the aforesaid decision of this Court in H.K. Dasappa's case equally applies to the sale held under Chapter XIV of the Act."
We agree with, and approve the aforesaid view expressed in Nagesh alias Nagappa Ganapathi Hegde's case.
18. Thus, it is clear that even in a case where the auction sale is held under the K.L.R. Act, the title in the immovable property sold in the public auction passes to the auction-purchaser on the confirmalion of the auction sale. In the instant case, the auction sale was confirmed on 6-1-1964 by the Deputy Commissioner, Belgaum as pointed above and it was also upheld by the High Court in W.P. No. 2332/64. Therefore it is clear that on 27-8-1966 Revajihad no saleable interest. Consequently, the plaintiffs did not get any right, title and interest in the suit property under the sale deed dated 27-8-1966. Point No. 3 is answered accordingly.
19. For the reasons stated above, the appeal fails and the same is dismissed.
20. In the facts and circumstances of the case, there will be no order as to costs in this appeal.
21. Appeal dismissed.