TMI Blog1996 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a suit being suit No. 397 of 1941 for recovery of possession of some properties held by this Tarwad on tenancy rights. On 12th of September, 1942 an ex party decree was passed in the suit in favour of Mohammed Haji for recovery of possession of the lease-hold property and also for arrears of rent. The ex party decree was executed. A number of items of properties belonging to the Tarwad including the suit properties were attached and sold in court auction held on 18.3.45 in execution proceedings. The suit property herein (one acre and ten cents of agricultural land) was purchased by the decree-holder Mohammed Haji in the court auction. The delivery of the suit property was given to the decree-holder auction purchaser on 12.3.1946 as per order on E.A. 389 of 1946. After purchase the suit property was given on lease by Mohammed Haji to one Raghavan Nair on 2.5.45. Raghavan Nair in turn sold his rights in the suit property to one Avyapoan who, in turn, sold his rights to one Raman Menon. Raman Menon sold his rights in the said property on 3.10.1950 in favour of the respondent, P.K. Abdulla. One of the members of the Tarwad challenged the ex-party decree in OS No. 397 of 1941 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in the High Court's judgment. After remand the trial court found that the Tarwad had obtained possession of the property pursuant to the restitution proceedings. It also found that the respondent who was the plaintiff there in had Established his title to the suit property and his right to recover possession. It accordingly decreed the suit allowing recovery of possession. This finding was confirmed by the district court and by the High Court. Hence the present appeal has come before us. The appellant before us is the successor-in-interest of the Tarwad and its members who were the defendants in OS No. 397 of 1941. After the ex party decree in OS No.397 of 1941 was set aside the suit has been heard on merit and the Munsif's court by its judgment and order dated 26th November, 1962 has dismissed the suit of Mohammed Haji for eviction and recovery of possession but has decreed the suit for arrears of rent and costs. It is, therefore, not in dispute that the appellant as the successor-in-interest of the original defendants in OS No.397 of 1941, is entitled to restitution in so far as it is permissible in law, in respect of the properties which were sold in execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fetch a proper price and the decree-holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection. In the case of Binayak Swain v. Ramesh Chandra Panigrahi and Anr. (AIR 1966 SC 948) this Court considered a case where in execution of an ex party decree the property of the judgment-debtor was purchased by the decree-holder. The decree was set aside in appeal and the case remanded for fresh disposal. This Court said that the judgment-debtor was entitled to restitution even though ultimately after fresh disposal a decree was passed in favour of the decree-holder. It said that the principle of the doctrine of restitution is that on the reversal of a decree the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court said, The court as a matter of policy has a tender regard for honest purchasers at sales held in execution of its decrees though the sales may be subsequently set aside, where those purchasers are not parties to the suit and the decree has not been passed without jurisdiction. But the same measure of protection is not extended to purchasers who are themselves the decree-holders; nor can the purchasers from such decree-holders claim that the court owes them any duty...... The policy which prompts the extension of protection to the strangers who purchase at court auctions is based on a need to ensure that proper price is fetched at a court auction. This policy has no application to sales outside the court. The purchasers from a decree-holder auction purchaser have bought from one whose title is liable to be defeated. The title acquired by the purchaser from the decree-holder is similarly defeasible. The Court further observed, The defeasibility of a decree-holder's title where the decree is ex party is of such common occurrence that the plea of a purchaser for value without notice hardly applies . The same view has been reaffirmed by the Calcutta High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title of his assignor or seller is subject to the doctrine of restitution if the decree is ultimately set aside particularly in a case where the decree is an ex party decree and there is a greater possibility of such a decree being set aside. The reasons which prompt the courts to protect strangers who purchase at court auction sales also do not apply to assignees or purchasers from a decree-holder auction purchaser. They purchase outside the court system and cannot expect any protection from the court. Their title is liable to be defeated if the title of their seller or assignor is defeated. The view, therefore, expressed by the Patna High Court in the case of Gopi Lal and Anr. v. Jamuna Prasad and Ors. (AIR 1954 Patna 36), the Madras High Court in S. Chokalingam Asari v. N.S. Krishna Iyer and Ors. (AIR 1964 Madras 404), and the cases cited therein as also by the Kerala High Court in the case of Parameswaran Pillai Kumara Pillai and Ors. v. Chinna Lakshmi and Anr. (1970 Ker.L.J. 458) is not the correct view. The High Court, therefore, was not right in protecting the lease created in favour of the respondent by Mohd. Haji who was a decree-holder auction purchaser at the sale in exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 of the land of another situate in Malabar shall be deemed to be a tenant if he or his predecessor-in- interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April of 1967. This section applies only to those who are in occupation believing themselves to be tenants. When a person obtains a lease from a lessor whose title is defeasible to his knowledge, he cannot claim that he believed himself to be a tenant. He will be a tenant only so long as the lessor has title to the land. Once the lessor's title is defeated the tenants' rights also disappear. Section 7 is not intended to confer legal immunity to trespassers. A tenant under a person not having title cannot come under the protection of this section nor can the phrase bona fide believing himself to be a tenant save a person encroaching or trespassing on another's land. Reliance was sought to be placed on Section 7B of the Act which was introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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