K.R. Srinivasa Iyengar and ors. Vs. K. Muthuraj and ors. - Court Judgment

Excerpt:
transfer of property act 1882 - section is 101, 111(d) determination of lease under-tenant purchasing the property of the land lord in court auction-confirmation of sale-merger held-the sale has become absolute and the property has been purchased by the tenant himself- as per section 111(d) of the transfer of property act, if the interest in the property becomes vested in one person, then there shall be a determination of the lease- on facts, held-the plaintiff has been conferred with the title on the said property in view of he purchasing the property in court auction and the sale has also been confirmed by an order of the court-the appellant/ judgment debtor who has purchased the property in court auction of which he is the tenant, there is merger of interest and appellants are entitled to be continued in possession-the judgment and decree of the courts below are set aside.;rsa's are allowed/civil revision petition filed by the decree holder challenging the dismissal of execution petition is dismissed. - sections 13(1)(d), 13(2) & 19: [ram mohan reddy,j] offence under - order of sanction - cognizance of the offence - irregularity in the sanction - held, even if it construed as an error, omission or irregularity in the sanction, is not fatal, so as to entitle the petitioner to contend that it has resulted in failure of justice. the authority has taken into consideration all relevant material placed before it by the investigating officer including the statement of witness. the only material that was not placed before the sanctioning authority was the tape-recorded version listed as article 10. that by itself is not fatal to the passing of the order of sanction. in fact, the production of the tape recorded conversation is a matter of proof which has to be produced at the time of trial. - as is clearly pointed out therein, there is no question of filing the suit for recovery of possession of the property if the plaintiff had clear title to the property from the landlord (licensor) and lawfully claiming under him. it was therefore not a case of a void sale which be ignored by a true owner and it did not affect his title'.it was further held that once an order was made under 0.21 rule 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under section 65, cpc and the title in the property thereafter vests in the auction purchaser and not in the judgment debtor'.the aforesaid ratio is clearly in favour of the appellants herein.huluvadi g. ramesh, j.1. these two second appeals are filed by the plaintiffs being aggrieved by the dismissal order passed by the civil judge (sr. dvn,) arsikere in ra 3/1995 and 4/1995 respectively confirming the order of the trial court.2. the revision petition is against the order in execution dismissing the execution petition filed by the decree holder in rent control proceedings.3. the suit property is a shop cum residential premises bearing no. 45, b h road, arsikere. the plaintiff is said to have taken this shop on lease along with the residential premises about 50 years back. the brother of the decree holder one subramani is said to have mortgaged the suit property to one bhagirathamma and then usufructuary mortgage to siddamallappa for rs. 5,000/- stating that he is the owner of the suit property. the said siddamallappa filed a suit in os 103/1971, for recovery of the amount paid to subramani and obtained a decree for rs. 9075/- i.e., rs. 5000/- being the principal amount plus the interest: due as on the said date. thereafter, in the execution proceedings filed by siddamallappa for realisation of the amount, the suit property bearing no. 45 which is the subject matter of the rent control proceedings was also sold in auction in which the plaintiff who was said to be in possession of the premises, who is also the judgment debtor in the rent control proceedings, is said to have purchased the suit property for rs. 30,000/-. however, against the order in os 103/1971, the decree holder muthuraj has referred an appeal in ra 2/1975 which was renumbered as 18/1979 seeking for setting aside the order of the trial court on the ground that he had not joined in execution of the mortgage deed. the said appeal was disposed of holding that muthuraj was not personally liable and for recovery of mortgage debt the property no. 45 could be sold in terms of the transfer of property act and order 34, cpc.4. meanwhile, muthuraj had filed hrc 4/1978 for eviction of the tenant. there was an order of eviction against which revision was filed in hrrp21/1981 which came to be dismissed. siddamallappa who had obtained a decree in the suit os 103/1971, filed a execution petition to realise the mortgage debt of rs. 15,705.45. the suit property in which the tenant was in occupation, was purchased by the tenant, himself subject to acceptance of the final bid before the court which came to be accepted before the court on 10.10.1988 for rs. 30,000/ - thereby the execution court confirmed the sale and issue the sale certificate on 5.12.1988.5. in the meanwhile, the house rent proceedings preferred before this court in hrc 4/1978 and the revision thereof in hrrp 21/1981 were dismissed and the tenant was given some time to vacate the premises and surrender possession. however, the tenant filed a suit in os 175/1989 seeking for an injunction which came to be dismissed against which the miscellaneous appeal filed also came to be dismissed. against the said order, civil revision petition 5026/1990 was filed which also came to be dismissed. in cp150/1993 filed in crp 5026/ 1990, this court directed the parties to maintain statusquo. the execution case 162/1990 filed by the decree holder was dismissed on the ground that the tenant who was in possession of the suit premises had purchased the same and there was a merger of interest against which, the present crp 4494/2001 is preferred by the decree holder.6. rsa 902/2000 an 903/2000 are filed against the judgment and decree in os 175/1989 and 270/1993 dismissing the suit filed by the plaintiff and confirmed by the civil judge (sr. dvn.) arsikere in the appeal preferred by the plaintiff.at the time of admission, the following substantial question of law was raised in both the second appeals.whether the sale of mortgaged property on 3.10.1988 in execution of the decree against subramani and muthuraj which was confirmed on 14.11.1988 brought about merger fusing leasehold rights with the right to reversion of reversion expectant in terms of section 101 and 111(d) of the transfer of property act.7. the civil revision petition is filed against the order of dismissal of the execution petition filed by the decree holder. on the strength of the purchase of petitioner's premises made by the tenant/judgment debtor in the rent control proceedings, the execution court holding that it amounts to merger dismissed the execution petition. whether the revision is maintainable on the order of dismissal of the eviction petition is the question as the order has reached finality and against such order, the right of appeal is provided under section 96, cpc.heard the counsel for the respective parties.although several attempts are made to settle the matter between the parties, either of the parties are not ready to evince interest in the same.8. it is the argument of the learned counsel for the appellants/ judgment debtor who has purchased the property in court auction of which he is the tenant, that there is a merger since the interest of the property has been purchased and though both the courts below have dismissed the suit of the appellants for an injunction, in view of the merger the appellants are entitled to be continued in possession and the appeals have to be allowed.per contra, counsel for the respondent in both the appeals contended that there cannot be an order of merger and both the courts below have rightly dismissed the suit of the plaintiff and he has continued in possession only as a tenant. it is contended that if the plaintiff has purchased the property, he has to independently assert his right and there cannot be a merger. in support of his contention, learned counsel has relied upon a decision in the case of santlaljain v. avtar singh, : [1985]3scr184 it is also contended that the dismissal of the execution petition filed by him is erroneous as there cannot be any merger of interest and that the order under revision has to be set aside.9. in so far as maintainability of the revision filed by the decree holder is concerned, the order passed by the execution court in dismissing the execution petition has reached finality. whether the executing court was right or wrong in dismissing the case since there is a merger of interest in view of the tenant purchasing the property, the said order has reached finality. since the said order is not a revisable order, the revision petitioner ought to have filed an appeal as provided under the section 96, cpc as it amounts to a decree. in that view of the matter, the revision petition has to be dismissed however, with liberty to the petitioner to file an appeal as provided under law.10. in so far as merger of interest is concerned, the order under challenge in the two appeals is regarding refusal of an order of injunction and the decree holder is said to have obtained a decree against the appellants in the rent control proceedings and there is an attempt by the decree holder to dispossess or evict the plaintiff from the suit property and to take possession from them. it is the case of the appellants that since there is merger of interest in the suit property, they have become the owners by virtue of the purchase of the property in court action and the decree cannot be enforced against them and the order of both the courts below refusing injunction would be erroneous.11. since the substantial question of law raised is with reference to sections. 101 and 111(d) of the transfer of property act, let me quote these two provisions:s: 101-no merger in case of subsequent encumbrance:any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.s: 111(d) - determination of lease: a lease of immovable property determines -a ...b ...c ...d. in case of interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.12. in the instant case, it is seen the suits have been filed in the year 1989 and 1993, one for injunction and the other for a declaration of title. the suit property was purchased in court auction in an execution against subramani who is said to be the owner of the suit property. on 10.10.1988, the sale was confirmed. it appears there was no further challenge challenging the sale confirmation in the court auction. the sale has become absolute and the property has been purchased by the tenant himself. as per section 111(d) of the transfer of property act, if the interest in the property becomes vested in one person, then there shall be a determination of the lease. the lower appellate court on the presumption that the plaintiff has not become the owner and there is no question of merger of lesser tenancy rights in a higher ownership, has affirmed the order of the trial court in dismissing the suit filed by the plaintiff for an order of injunction and declaration. the dismissal was also on the ground that plaintiff has not brought to the notice of this court in cp 150/1993 that he has becomes the owner of the property and that his tenancy right was merged with the higher right of ownership and if the said fact was brought to the notice of this court, it would have allowed the civil petition. further, it was of the opinion that there was a decree against the plaintiff in favour of the defendant in hrc 4/1978 and the same was confirmed by this court. as such, it was of the opinion that there is no merger and the plaintiff obtaining the sale certificate and thereby becoming owner of the suit property is not in accordance with law.13. however, it appears the defendant has obtained a decree of eviction against the appellant. however there was an execution filed by siddamallappa and, a joint decree was obtained and the property was brought to sale. although in the revision petition against the order of the executing court, this court has held that though the respondent/ defendant is not personally liable as he was only guarantee and the suit property is the subject matter for recovery of the mortgaged amount in favour of the mortgagee siddamallappa, the suit property which is the subject matter of court auction was purchased by the plaintiff who was the tenant. it is seen that there was no challenge as to the sale.14. relying upon the decision in sant lal jain's case cited supra, learned counsel for the respondent argued that there cannot be a merger and the plaintiff must first surrender the possession of the property to the landlord and then seek his remedy according to law. in the said decision, the apex court was of the view that 'the respondent-licensee must be deemed to be always a licensee. it was not open to him, during the subsistence of the licenseor. in the suit for recovery of possession of the property institute after the revocation of the license to set up title to the property in himself or anyone else, he need not do so if he had acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger.' the ratio laid down in the said case makes it clear that if the tenant has purchased the property from the landlord himself there is no question of filing the suit independently in the instant case, it is seen that there is a decree obtained by siddamallappa against muthuraj and his brother subramani wherein subramani has mortgaged the property in favour of siddamallappa. in the execution filed for the realisation of the amount, the very same property which muthuraj claims to be belonging to him also, is said to be sold in court auction and in respect of the same property the said muthuraj has obtained a decree of eviction. the plaintiff has been conferred with the title on the said property in view of he purchasing the property in court auction and the sale has also been confirmed by an order of the court. in view of the ratio laid down in the decision relied upon by the respondent's counsel himself, there is a merger. as is clearly pointed out therein, there is no question of filing the suit for recovery of possession of the property if the plaintiff had clear title to the property from the landlord (licensor) and lawfully claiming under him. though it is not by virtue of direct sale between the tenant and the landlord, the property has been purchased by the tenant in a court auction for which the landlord is also a party. as such, the decision relied upon by the learned counsel is rather in favour of the appellants.15. in the case of sagar mahila vidhalaya, sagar v. pandit sadashivrao harshe and ors., : [1991]2scr906a a three judges bench of the supreme court has held that no right or title remained with the judgment debtor after confirmation of sale in favour of the highest bidder. it was therefore not a case of a void sale which be ignored by a true owner and it did not affect his title'. it was further held that once an order was made under 0.21 rule 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under section 65, cpc and the title in the property thereafter vests in the auction purchaser and not in the judgment debtor'. the aforesaid ratio is clearly in favour of the appellants herein.16. however, according to the respondent. subramani who is his brother, had mortgaged the suit property that was the subject matter of court auction and he alone was liable to the extent of his share and not with regard to the respondent's share and that property was also sold in auction.17. it appears, there is a controversy as to the handing over possession of the property fallen to the respondent's share. according to the appellant's counsel, the share of the respondent has been given and what is being purchased is only the share of subramani. if there is any such dispute, the parties will have to amicably settle their respective shares or if there is any ambiguity as to the share of the parties, they may seek for appointment of commissioner to identify their respective shares and to take possession of the same. it is also open to the respondent to work out his remedy and the appellants, as a matter of equity, shall co-operate without offering any resistance. the respondent is at liberty to work out their remedy in any other manner if they are aggrieved in identifying the extent of his right over the suit property.18. with the above observations, the appeals are disposed of.revision petition is dismissed with liberty to file an appeal, if so advised, and to pursue remedy if the parties do not come to a compromise while working out settlement. parties to bear their own costs.