Andhra HC (Pre-Telangana)
Motamarri Venkata Kotamma And Ors. vs Narra Lakshmaiah And Ors. on 28 January, 2002
Equivalent citations: 2002(3)ALD762, 2002(4)ALT621
ORDER
1. In this revision the petitioners challenge the order of the Court of Subordinate Judge, Cheerala in E.A.No.160 of 1997 in E.P.No.42 of 1995 in O.S.No.12 of 1942.
2. The relevant facts may be briefly stated as under:
O.S.No.12 of 1942 was filed in the Court of the Subordinate Judge, Tenali for partition. In that suit, the ancestor of the petitioners herein by name Motamarri Veeraiah was defendant No.3. During the pendency of the suit, item-12 of the B-schedule was under the possession and management of defendant No.3. He entered into an agreement of sale in favour respondents herein on 16.3.1957. Possession of the said item of property was delivered to the petitioners. Defendant No.3 died somewhere in the year 1960. Thereafter, the petitioners herein who are legal representatives of defendant No.3 executed sale deeds in favour of respondents transferring item No.12 of suit "B" schedule property in the year 1963 under documents marked as Exs.B.1 and B.2. When certain proceedings were taking place in the suit as to entrustment of the properties to the receiver, the respondents got themselves impleaded in the suit as defendants 17 to 22 by filing I.A.671 of 1965, which was ordered on 23.7.1965. Thereafter, a preliminary decree was passed on 22.4.1966. The preliminary decree was challenged in various proceedings and the matter went up to Supreme Court. Ultimately, the final decree came to be passed on 22.12.1975 wherein item 12 of the suit 'B' schedule property was allotted to the petitioners herein. It appears that the final decree proceedings were also challenged in some other proceedings. It was only in the year 1982 that the said final decree proceedings assumed finality.
3. The petitioners filed E.P.No.42 of 1995 claiming that under the final decree proceedings item No.12 of suit 'B' schedule was allotted to their share together with the mesne profits accrued thereon and that since the said property is in the possession of the respondents, the petitioners may be put in possession of the said property. In that E.P. the respondents filed E.A.160 of 1997 under Section 47 and Section 151 of the Code of Civil Procedure seeking a declaration that the petitioners herein are not entitled to seek execution of the decree against the respondents on the ground that the title as well as the possession of the said property vests in them. The executing Court passed an order dated 28.11.1997 in which it dismissed E.P.42 of 1995 and allowed E.A.160 of 1997. Thus arises the revision.
4. Sri D.V.Ramana Murty for Sri D.Ramalinga Swamy, learned counsel appearing for the petitioners submits that in the final decree proceedings, it was categorically stipulated that item12 of 'B' schedule property is allotted to the petitioners herein and once that be so, the petitioners are entitled to be put in possession of the said item of property irrespective of the fact as to who is in possession of the same. It is his contention that any enquiry by the executing Court as to the entitlement of the person other than the petitioners herein to hold or possess the said item is beyond the scope and ambit of the decree and the executing Court cannot undertake the same. He further submits that the respondents were in possession of the land as custodians under various orders passed by the Court and the steps taken by the receiver. That being so, according to him, on the termination of the suit proceedings, the respondents cease to have any right to continue in possession of the same and viewed from any angle the petitioners are entitled to be restored to possession.
5. Sri K.Chidambaram for Sri M.Ramaiah, learned counsel for the respondents, on the other hand submits that the respondents were put in possession of the said item property even before it was brought under the control and management of the receiver, that the respondents have become the owners of the property having purchased the same from defendant No.3 and his legal representatives, petitioners herein and the very purpose of their getting impleaded in the suit was to ensure that in the final decree proceedings item 12 of 'B' schedule is allotted to the petitioners so that the sale transaction in their favour becomes complete. It is his further contention that once it is established that the petitioners were put in possession of the property under an agreement of sale in the year 1957, even before the suit schedule properties were brought under the management of the receiver, their rights cannot be defeated on the conclusion of the suit proceedings.
6.It is a matter of record that defendant No.3 executed an agreement of sale in favour of the respondents on 16.3.1957. The possession of the said property was delivered to the respondents on the date of agreement itself. Defendant No.3 died some time in the year 1960 and the petitioners who are his legal representatives are brought on record. The petitioners executed two sale deeds on 19.4.1963 in favour of the respondents. These facts became part of record in the order passed by the trial Court in I.A.No.548 of 1964 filed by the respondents herein when an attempt was being made to dispossess them. The petitioners did not dispute the factum of execution of agreement of sale or sale deeds and the factum of delivery of possession of the said property to the respondents. On the other hand, there was allegation by the plaintiff in the suit that the petitioners herein colluded with the respondents to take away item 12 from the purview of administration of the properties by the Court.
7. It was after the trial Court passed orders in I.A.548 of 1964 on 30.4.1964, obviously, with a view to protect their interests that the respondents filed I.A.671 of 1965 under Order 1 Rule 12. The same was ordered on 23.7.1965. Except that the respondents are the purchasers of one of the items of suit schedule property, they have absolutely no interest whatsoever in the suit. Their only object was to ensure that in the event of partition, the item of property, which was purchased by them be allotted to the share of the petitioners herein who are their vendors. That object was achieved as is evident from the final decree proceedings, obviously with the approval and acceptance of the petitioners herein.
8. There cannot be any quarrel with the submission made by the learned counsel for the petitioners that the receiver or any other person who is entrusted with the management of any suit schedule property by the Court is only a custodia legis and that the person entrusted with such management does not have the right to alienate the property or to create interest in respect thereof in favour of third parties. In this regard the contention of the learned counsel for the petitioners is two fold. He states that the share of defendant No.3 was not ascertained till the final decree and he was administering item 12 of the property under certain arrangement by the Court. On this basis he states that the agreement of sale executed by defendant No.3 and the sale deeds executed by the petitioners who are the legal representatives of defendant No.3 cannot be sustained in law. His second submission is that once the properties were entrusted by the court in the year 1959 to the receiver, on the conclusion of the suit proceedings, the receiver is under obligation to restore possession to the parties as per the directions contained in the decree.
9. So far as the first submission is concerned, it has to be noticed that defendant No.3 was not a stranger to the suit properties. Admittedly, he was one of the sharers and co-owner along with other parties to the suit. The order of the Court, if any, permitting defendant No.3 to administer or manage item No.12 did not have the effect of taking away his right or interest in the undivided share of the suit schedule properties. It is well settled that if one of the co-owners transfers his undivided share or any particular item of the undivided properties, the person in whose favour such interests are created would step into the shoes of the sharer who has transferred such interest and in the event of partition, the Court has to take into account the equities while passing the final decree. That was exactly the reason why item 12 came to be allotted to the share of defendant No.3 and his legal representatives. It is too late in the day for the petitioners herein to turn round and say that defendant No.3 did not have the power or right to sell the said item in favour of the respondents. There is another aspect of the matter. Even if it is to be taken that defendant No.3 and the petitioners herein did not have right to transfer item 12 of 'B' Schedule property in favour of the respondents, at the most it may result in a situation of the sale becoming voidable and not void. In such an event it is only anyone who questions the right and competence of defendant No.3 and the petitioners to transfer item 12 that can challenge the transfer in favour of the respondents and not the petitioners themselves. The concept of doctrine of estoppel gets straight away attracted. It cannot be an exaggeration to say that it is only meet such situations that concept of estoppel came to be formulated.
10. So far as the second submission is concerned, the learned counsel is correct when he says that the receiver who is entrusted with the property has to restore the same to the parties as per the directions. This becomes true when the properties were under the possession and enjoyment of the parties to the suit and the Court directs that different parties are entitled for different items of the suit schedule. However, in a case where even by the time the receiver was entrusted with the administration of the properties, if a third party was in possession as of right, such rights cannot be defeated on account of the mere fact that the property came to be administered by the receiver for some time. At the most it can be said that during the administration of the property by the receiver, the rights and obligations of the parties remain in suspended animation and on the conclusion of the suit proceedings they get resurrected. It was not in dispute that respondents were in possession of item 12 of 'B' schedule under agreement of sale executed by defendant No.3. The rights created in their favour cannot get dissolved simply because the property was entrusted to receiver for administration. It should not be forgotten that during the interregnum, the petitioners executed the sale deed in favour of respondents. Thereby the possessory rights of the respondents got transformed into the ownership rights. It was in view of these developments that the respondents got themselves impleaded in the suit to ensure that in the final decree proceedings the said item is allotted to the share of petitioners herein so that it will enure to their (respondents) benefit since they have already stepped into the shows of the petitioners. These consequences provided law cannot be short circuited by placing reliance on certain doctrines which do not apply to the facts of this case.
11. An attempt was made to dispute the correctness of the sale deeds mostly on legal grounds. It is not disputed that the petitioners have executed the sale deeds Ex.B.1 and B.2. Their contention is that since the item of property, which was sold by them was subject matter of the suit, the sale effected without permission of the Court does not result in conveyance of title to the respondents. One facet of this argument was already dealt in preceding paragraphs. A further aspect to be noticed is that as early as in the year 1964 the respondents filed I.A.548 of 1964 narrating the factum of execution of agreement of sale in their favour by defendant No.3 and execution of sale deeds by the petitioners. This was followed up by the respondents by filing application under Order 1 Rule 10 C.P.C. to get themselves impleaded. It was only after the respondents herein were impleaded as defendants 17 to 22 that the preliminary decree was passed. No objection was raised by the petitioners as to the validity of the sale deeds executed by them. If at all there was anyone who was supposed to raise any objection as to the legality or validity of the sales pleaded by the respondents, it was only the petitioners. They did not choose to raise any objection as to the legality or otherwise of the sale deeds. They cannot be permitted to raise the plea after nearly three decades that too in an execution petition. Their plea, even if it is tenable, is barred by principle of constructive res judicata.
12. I do not find any ground either of law or of fact to interfere with the order passed by the Court below. The C.R.P. is accordingly dismissed. There shall be no order as to costs.