Nellikkottu Kolleriyil Madhavi Vs. Kavakkalathil Kalikutty and ors. - Court Judgment

Excerpt:
civil procedure code 1908 (central act no. v of 1908) - section 100 - substantial question of law -- non-consideration of the material evidence is a substantial question of law. ; decree for permanent injunction was granted by the trial court and the first appellate court to the plaintiff as against an assignee of a court auction purchaser to whom not only sale certificate had been issued by the court but also he had been put in possession of the same. high court in second appeal dismissed the suit by setting aside the judgment and decree of the courts below by pointing out that the documents that are very material for deciding the controversy had not been considered in proper perspective. plaintiff challenged the same before supreme court - appeal of the palintiff was dismissed holding that the perpetual injunction granted by the high court in second appeal is not vitiated, by any error of law muchless substantial question of law. - karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 121-a : [subhash b. adi, .j] revision under-mysore (personal & miscellaneous) inams abolition act, 1954 - section 10 - determination of claims -rejection of claim one more application by the successor in interest - held, if an issue as regard to the grant of occupancy rights has been decided earlier between the parties, same is binding on the parties and the successor in interest. in this case, the father of the deceased petitioner herein having suffered the said order, petitioner as a son being the successor in interest, is bound by the said order. hence the second application was rightly rejected by the tribunal as not maintainable. further, no doubt, the order without jurisdiction is a nullity and it can be questioned even in a collateral proceedings, but at the same time, lapse of time is also one of the factors, which is required to be considered. the gap between the order passed by the deputy commissioner and the order challenged clearly indicates that the said order was in force for nearly 40 years, neither the petitioner nor his father challenged the said order, it is only in 1989, it was sought to be challenged, however, the appeal and writ petitions filed by the petitioner have been dismissed and the order dated 13.11.1958 has been confirmed. after 50 years, it would not be proper to set the clock back to consider as to whether the order of 1958 was one with jurisdiction or without jurisdiction, which has survived and is confirmed by the judicial orders. in the light of the earlier order dated 13.11.1958, now it is not open to hold that the said order is not operative or void order.order1. leave granted.2. we have heard learned counsel on both sides.3. this appeal by special leave arises from the judgment and decree of the kerala high court dated 24,5.1993, made in sa.no. 368 of 1989. the respondents had purchased the plaint schedule property in execution of the decrees in os no. 262 of 1955 on the file of the court of the district munsif, parappanagadi. the sale certificate, exh. a-2 dated 28.1.1958 was given to the respondents. they had also filed an application for delivery of possession of the property which had come to be delivered under exh. a-3 dated 21.7.1961. after taking delivery of the possession on 20.10.1961, they assigned the plaint schedule property to the plaintiff. under those circumstances, the question arises whether they are entitled to a decree of perpetual injunction, restraining the appellant from interfering with his possession. though the trial court and the appellate court had accepted the case of the appellants, the high court has pointed out that aforesaid documents are material for deciding the controversy and the courts below had not considered those documents in proper perspective. accordingly, in second appeal, the high court has gone into that question. it is settled law that the person who purchases the property in a court auction-sale, gets title to the property by sale certificate issued by the court as true owner and after confirmation of the sale, he gets possession thereof. in view of the fact that plaint schedule property was delivered to sankaran under exh. a-3 on 21.7.1961, he lawfully came into possession and the same was delivered in turn to the plaintiffs. non-consideration of the material evidence is a substantial question of law.4. under these circumstances, the perpetual injunction granted by the high court in the second appeal is not vitiated by any error of law much less substantial question of law warranting interference. the appeal is accordingly dismissed. if the appellant has got any titled independent of this, it is open to him to have the right established in accordance with law.

Judgment:
ORDER

1. Leave granted.

2. We have heard learned counsel on both sides.

3. This appeal by special leave arises from the judgment and decree of the Kerala High Court dated 24,5.1993, made in SA.No. 368 of 1989. The respondents had purchased the Plaint Schedule property in execution of the decrees in OS No. 262 of 1955 on the file of the Court of the District Munsif, Parappanagadi. The sale certificate, Exh. A-2 dated 28.1.1958 was given to the respondents. They had also filed an application for delivery of possession of the property which had come to be delivered under Exh. A-3 dated 21.7.1961. After taking delivery of the possession on 20.10.1961, they assigned the Plaint Schedule property to the plaintiff. Under those circumstances, the question arises whether they are entitled to a decree of perpetual injunction, restraining the appellant from interfering with his possession. Though the trial Court and the appellate Court had accepted the case of the appellants, the High Court has pointed out that aforesaid documents are material for deciding the controversy and the Courts below had not considered those documents in proper perspective. Accordingly, in second appeal, the High Court has gone into that question. It is settled law that the person who purchases the property in a Court auction-sale, gets title to the property by sale certificate issued by the Court as true owner and after confirmation of the sale, he gets possession thereof. In view of the fact that Plaint Schedule Property was delivered to Sankaran under Exh. A-3 on 21.7.1961, he lawfully came into possession and the same was delivered in turn to the plaintiffs. Non-consideration of the material evidence is a substantial question of law.

4. Under these circumstances, the perpetual injunction granted by the High Court in the second appeal is not vitiated by any error of Law much less substantial question of law warranting interference. The appeal is accordingly dismissed. If the appellant has got any titled independent of this, it is open to him to have the right established in accordance with law.