State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302, In this case, Court held that the rule provided that an application for alteration of recorded date of birth would be entertained only if made within five years after entering the service. This Court held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Government servant would not be permitted to challenge the entry at the fag end of his service.
Executive Engineer, Bhadrak (R&B) Division, Orissa and Others vs. Rangadhar Mallik, 1993 Supp (1) SCC 763. In this case, Court was considering Rule 65 of the Orissa General Finance Rules stipulating that representation for correction of date of birth made near about the time of superannuation shall not be admitted. This Court held that the representation for correcting the date of birth made by respondent 18 years after is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.
Government of Andhra Pradesh and Another vs. M. Hayagreev Sarma, (1990) 2 SCC 682. A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 was under consideration in this case by the Court. The date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for alteration in the date of birth so recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commencement of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained under Births, Deaths and Marriages Registration Act, 1886 was not open.
Union of India vs. Harnam Singh, (1993) 2 SCC 162. In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.
Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Another, AIR 1995 SC 1499. "Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."
In The Secretary & Commissioner Home Department & Ors. Vs. R. Kirubakaran, JT 1993 (5) SC 404, Court held : "An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book. .. As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal."
Supreme Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 , at page 475 had held that the service record cannot be changed just a few years before the retirement or at the fag end of his retirement. The Apex Court had held as under : "......It is thus seen from the above quoted judgments that this Court has consistently taken the view that correction in entries made in government records on the basis of which the government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement."
The Supreme Court had also held in Union of India v. Harnam Singh, (1993) 2 SCC 162 that the alteration sought by an employee after 35 years of his induction into service during which he had several occasions to see the service book cannot be allowed.
In the case of State of Orissa and Ors. v. Ramnath Patnaik, AIR 1997 Supreme Court 2452, the Supreme Court has observed in Para 4. "When entry was made in service record and when he was in service, he did not make any attempt to have the service record corrected, therefore, any amount of evidence produced subsequently would be of no avail..." The Supreme Court has held that "an employee cannot be permitted to seek correction of his date of birth after his retirement".
In the case of Hindustan Lever Limited v. S.M. Jadhav and Anr., 2001 (2) ESC 338 (SC) : AIR 2001 SC 1665, the Supreme Court, has elaborated its earlier view and held that "an employee cannot be allowed to raise, at the fag-end of the career, dispute regarding correction of his date of birth".
In the case of General Manager, Bhawani Cooking Coal Limited, West Bengal v. Shib Kumar Dushad and Ors., (2000) 8 SCC 696, the Supreme Court has held that "no dispute regarding correction of date of birth shall be permitted to be raised after long time his joining service unless it is based on some typographical or arithmetical error and the Court refused to interfere in such matter".
In Bhupendra Nath Chatterjee v. State of Bihar, AIR 1977 SC 746, it was held that the date of birth recorded in service record is to govern the date of superannuation of the person from service.
The application for correction of date of birth as recorded in the service book are not permitted to be corrected by inordinate delay as held in Union of India v. Kantilal Hematram Pandiya, (1995) 3 SCC 17 : AIR 1995 SC 1349. The Supreme Court has held that the document which came into existence subsequent to the entrance in service but while getting the date of birth recorded in the said certificate respondents had not been involved.
In Union of India v. Ram Suia Sharma (1996) 7 SCC 421, the Supreme Court has again reiterated that the claim for correction of the recorded date of birth made 25 years of joining in the service could not have been entertained by the Central Administrative Tribunal and the Tribunal's direction allowing such a claim as per se illegal and that due to long delay and latches, such a claim should not have been entertained by the Tribunal.
In Harpal Singh v. State of Haryana, AIR 1981 SC 361; Brij Mohan v. P.B.N. Sinha, AIR 1965 SC 282 and Ramprasad v. State of Bihar, AIR 1970 SC 326, it has been held by the Supreme Court that unless it is proved that the entries had been recorded in exercise of the official duties by a Government servant, the same cannot be held to be admissible under Section 35 of the Evidence Act. In case, it is proved that it got recorded by an illiterate Chowkidar or by someone else or entries had been made without proper checking, the same requires corroboration and cannot be assumed to be correct.
In Mohammed Ikram Hussain v. State of U.P., AIR 1964 SC 1625, it was held that the age of the girl mentioned in the School Register at the time of admission was a good evidence under Section 35 of the Evidence Act. School Register was found to be admissible on the ground that these entries were made ante litem mortem.
In Updesh Kumar and Ors. v. Prithvi Singh and Ors., AIR 2001 SC 703, the School Admission Register was held to be made admissible under Section 35 of the Evidence Act. Even the age mentioned in Matriculation Certificate by the Education Board was held to be done in accordance with law as required under Section 114, Illustration (e) of the Evidence Act.
In Ramdeo Chauhan v. State of Assam, AIR 2001 SC 2231, the Supreme Court, while examining the issue regarding admissibility of School Admission Register under Section 35 of the Evidence Act, held that as it was not clear as under what provision of law, the School Register was maintained, the entries made in such a Register cannot be taken as a proof of age of the person concerned for any purpose.
In case of Union of India v. Harnam Singh, 1993 (2) SCC 162, position in law was again reiterated and it was observed : "A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay."
In State of Madhya Pradesh and Ors. v. Mohan Lal Sharma , JT 1996 (5) 30, 1996 SCALE (4)385 the Hon'ble Supreme Court held that while examining the issue of correction of date of birth, the Court must be very slow in accepting the case of applicant if issue has been agitated at a much belated stage and it must examine the pros and cons involved in the case even if not raised by the parties. In the said case the Tribunal had allowed application for correcting the date of birth placing reliance on the Horoscope and a certificate issued by the retired Head Master of the School showing a different date of birth. The Apex Court reversed the said judgment observing that if it was allowed the applicant would have joined the service when he was less than 18 years of age, and therefore, accepting such an application would amount to sanctifying his illegal entrance in service. The Court further observed that no reliance could be placed upon the said certificate and Horoscope at all.
In State of Punjab v. Mohinder Singh - 2005(3) S.C.C. 702, the Supreme Court has held that the school records can be corrected only with authentic records and not mere horoscope. The Supreme Court held that horoscope is a very weak piece of material to prove age of a person. A very heavy onus lies on the person, who wants to press it into service, to prove its authenticity. It requires to be proved in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge as regards authenticity of date, time etc. mentioned therein, and in that context, horoscopes have been held to be inadmissible for proof of age. For that purpose, reliance has been placed by the Hon'ble Supreme Court on the judgments in Mt. Biro v. Atma Ram and Ors. AIR 1937 PC 101 and also on the judgment of the Calcutta High Court in Satish Chandra, Mukhopadhyaya v. Mohindra Lal Pathak ILR 97 Cal 849.
In Union of India v. Kantilal Hemantram Pandiya , 1995 AIR 1349, 1995 SCC (3) 17 the Hon'ble Supreme Court held that the Court must be very vigilant in placing reliance on a document or certificate of date of birth which had been brought into existence for the benefit of the pending proceedings as the correctness and genuineness of such a certificate is not free from doubt and the same might have been obrained for getting the relief by such an applicant.
The application submitted for correction of date of birth on the verge of retirement shall be summarily rejected is the view taken by the Supreme Court in the following decisions;
(i) (1994) 2 SCC 491 (State of Orissa v. Brahamarbar Senapathi)
(ii) (1996) 7 SCC 421 (Union of India v. Ram Suia Sharma)
(iii) (2000) 8 SCC 696 (G.M.,Bharat Coking Coal Ltd., v. Shib KUmar Dushad)
(iv) (2004) 3 SCC 394 (State of Punjab v. S.C.Chadha)
(v) (2005) 6 SCC 49 (State of U.P. v. Shiv Narain Upadhyaya)
(vi) (2005) 11 SCC 465 (U.P.Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri)
(vii) (2005) 11 SCC 477 (State of Uttaranchal v. Pitamber Dutt Semwal)
(viii) (2005) 12 SCC 201 (Coal India Ltd. v. Ardhendu Bikas Bhattacharjee)
(ix) (2006) 6 SCC 537 (State of Gujarat v. Vali Mohd. Dosabhai Sindhi)
The evidenciary value of the entry made in the SSLC book with regard to the date of birth is also considered by the Supreme Court in the decision reported in (2002) 7 SCC 719 (State of M.P. v. Mohanlal Sharma). In paragraph 2 the Supreme Court held as follows: "2. .............. The date of birth, as recorded in the matriculation examination, carries a greater evidential value than the evidential value attached to the certificate given by the retired headmaster showing the date of birth of the respondent.
Supreme Court reported in (2005) 3 SCC 702 (State of Punjab v. Mohinder Singh). Inparagraphs 11 to 13, the evidentiary value of the horescope and the entries made in the school records are considered and held as follows: "11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age.
Umesh Chandra v. State of Rajasthan 1982 AIR 1057, 1982 SCR (3) 583 ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.
JUSTICE Dalveer Bhandari, & JUSTICE Dipak Misra of Supreme court of India in the case of A.Shanmugam vs Ariya, Decided on 27 April 2012, has held as follows:- Experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the administration of justice and this can be sufficiently taken care of if the Courts adopt realistic approach granting restitution. ................. Unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. Experience also reveals that our Courts have been very reluctant to grant the actual or realistic costs. We would like to explain this by giving this illustration. When a litigant is compelled to spend Rs.1 lac on a frivolous litigation there is hardly any justification in awarding Rs. 1,000/- as costs unless there are special circumstances of that case. We need to decide cases while keeping pragmatic realities in view. We have to ensure that unscrupulous litigant is not permitted to derive any benefit by abusing the judicial process. ......................
This Court in the case of Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249 in paragraph 52 (C, D and G) of the judgment dealt with the aspect of imposition of actual or realistic costs which are equally relevant for this case reads as under:- “C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits. G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.”
This Court in another important case in Indian Council for Enviro- Legal Action v. Union of India and Others (2011) 8 SCC 161 (of which one of us, Bhandari, J. was the author of the judgment) had an occasion to deal with the concept of restitution. The relevant paragraphs of that judgment dealing with relevant judgments are reproduced hereunder:-
193. This Court in Grindlays Bank Limited v. Income Tax Officer, Calcutta (1980) 2 SCC 191 observed as under :- “…When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. …”
194. In Ram Krishna Verma and Others v. State of U.P. and Others (1992) 2 SCC 620 this Court observed as under :- “The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax Officer -  2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959. …”
195. This Court in Kavita Trehan vs Balsara Hygiene Products (1994) 5 SCC 380 observed as under :- “The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words “Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, ...”. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.”
196. This Court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :- “From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation.”
197. In Padmawati v. Harijan Sewak Sangh - CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:- “The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.”
198. We approve the findings of the High Court of Delhi in the aforementioned case.
199. The Court also stated “Before parting with this case, we consider it necessary to observe that one of the main reasons for over- flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts”. ................
208. In Marshall sons and Company (I) Limited v. Sahi Oretrans (P) Limited and Another (1999) 2 SCC 325 this Court in para 4 of the judgment observed as under: “…It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. …”
209. In Ouseph Mathai and Others v. M. Abdul Khadir (2002) 1 SCC 319 this Court reiterated the legal position that the stay granted by the Court does not confer a right upon a party and it is granted always subject to the final result of the matter in the Court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the Court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection.
210. This Court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under: “In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P - (1984) Supp SCC 505) In law, the term “restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.”
211. The Court in para 28 of the aforesaid judgment very carefully mentioned that the litigation should not turn into a fruitful industry and observed as under: “… … …Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”
212. The Court in the aforesaid judgment also observed that once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978.
213. In a relatively recent judgment of this Court in Amarjeet Singh and Others v. Devi Ratan and Others (2010) 1 SCC 417 the Court in para 17 of the judgment observed as under: “No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. … …”
215. In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.
216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
217. The court’s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
218. This Court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under: “While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”
JUSTICE HVG RAMESH of Karnataka High Court in case of Mahadevappa And Ors. vs State Of Karnataka Reported in ILR 2008 KAR 1750 It is needles to say it is duty bound on the part of the revenue authorities and the Sub-Registrar as per Section 128(4) to invariably intimate the fact of transfer of interest or ownership from the first party to the second party to the concerned revenue authorities so that concerned revenue authorities will make the mutation entries in the concerned register and also proper entries in the revenue register after following the procedure as per Section 129 of the Land Revenue Act. Ultimately, any intended purchaser would get himself verified about the status of the property whether before he could go for any such purchase or seek for transfer of interest from the person who has got a right, title and interest so that he will not be mislead. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications.
Karnataka High Court Nagappa Gowda And Ors. vs Doddamane Gurupadappa And Anr. on 6 November, 1952 Equivalent citations: AIR 1954 Kant 39, AIR 1954 Mys 39, ILR 1953 KAR 408 Author: Vasudevamurthy Bench: Medapa, Vasudevamurthy
1. The plaintiff's suit for declaration of title, possession and mesne profits of a garden land has been party decreed by the District Judge, Shimoga and defendants 1 to 4 and 6 have appealed. Defendant 5 has been formally impleaded as respondent 2 and the plaintiff is respondent 1. The plaintiff has also filed cross-objections regarding the 4 share of the garden which has not been decreed in his favour.
2. According to the plaintiff, the suit property belonged to a joint Hindu family of one Benavanna- Gowda and his three undivided brothers. For failure to pay land revenue it was forfeited to Government in or about the year 1937, but it could not be disposed of in revenue auction for want of bidders and it was resumed or taken under Government "phada"; subsequently as Benavanna-Gowda paid up all the dues it was granted to him. For some monies due by him and his brothers the plaintiff filed a suit O. S. No. 27 of 35-36 in the Court of the Subordinate Judge at Shimoga, and in execution of that decree purchased the suit property along with some other items in Court sale on 1-10-42. After the sale was confirmed he was put in possession in Mis. No. 11 of 43-44 . At that stage the father of defendant 6, one Chennabasappa now dead and who was the then Manager of the family of the defendants filed a suit O. S. No. 160/43-44 in the Shimoga Munsiff's Court for a declaration of his title and for permanent injunction against the plaintiff alleging that he was in possession, and obtained an order of temporary injunction restraining the plaintiff from entering the suit garden. Under colour of that order he then removed the areca and paddy crop for the year 1943-44. Chennaba-sappa's suit was decreed in his favour by the Munsiff but, on appeal, was dismissed by the Subordinate Judge of Shimoga and the dismissal was confirmed in the High Court. In spite of that decision the deceased Chennabasappa and after him defendants 1 to 6 his legal representatives have been continuing in unlawful possession of the land and were liable to deliver up possession and mesne profits.
3. The defendants pleaded that the suit property belonged solely to Renevannagowda and was his self-acquisition. One Krishnappa filed a suit against him for some monies due by him in O. S. No. 335/26-27 in the Shimoga Munsiff's Court and brought it to sale in Ex. case No. 191 of 31-32 when it was purchased in Court auction by one Sundarasastry. After the sale was confirmed in his favour on 24-12-1934, Sundarasastry was put in possession through Court on 1-1-35 in Mis. No. 121/34-35. He subsequently sold the garden to Chennabasappa, father of defendant 6, on 30-6-43. Sundarasastry and after the sale by him Chennabasappa and the defendants were all along in possession and enjoyment of the suit property. The plaintiff had got the suit property attached before judgment in O. S. 27/35-36 which he had brought against Benavannagowda and his brothers. Sundarasastry had then put in a claim objecting to the attachment in Mis. Case No. 20V of 35-36. That claim had been allowed in favour of Sundarasastry as far back as on l4-3-1937. The plaintiff had not got that order set aside and the same had become conclusively binding on him. Nevertheless he had played a fraud on the Court by getting the suit property sold subsequently in execution in the Subordinate Judge's Court at Shimoga without disclosing to that Court the fact that Sundarasastry's claim against the attachment had been allowed as aforesaid & he could not acquire any right under such a fraudulent sale.
The Suit O. S. No. 160/43-44 filed by Chennaba-sappa in the Munsiff's Court at Shimoga for a declaration of title and permanent injunction was decreed in his favour by the Munsiff, Shimoga, as admitted in the plaint. But on appeal in R.A. No. 16/45-16 the Subordinate Judge rejected the plaint only on a technical ground that an extract from the Record of Rights had not been filed along with the plaint, and in -- 'S. A. No. 356 of 1946-47 (Mys) (A)' that order was confirmed. There had been therefore no decision on the merits against the defendants in those appeals and three criminal complaints filed by the plaintiff against the defendants complaining of trespass and that in respect of the produce of this suit garden had ended in orders of discharge. The defendants had considerably improved the garden and in the event of the plaintiff succeeding they were entitled to be reimbursed the value of the same. The plaintiff had brought this suit on account of ill-will as a counter blast to some other litigation between the parties.
4. The District Judge, Shimoga, found that the suit property was the joint family property of Benavannagowda and his brothers and that it did not belong to Benavannagowda alone. He held that the order in the claim case could only affect Benavannagowda's share as Sundarasastry had bought only his right, title and interest. He did not think that the plaintiff was entitled to claim any enlargement of his rights on account of the forfeiture and other revenue proceedings. He did not also believe that the defendants had improved the suit garden. He, therefore, made a decree in favour of the plaintiff for a 3/4th share of the garden and mesne profits.
5. Mr. Krishnamurthi, learned counsel for the appellants, has contended before us that the order of the Subordinate Judge in the claim case was that the plaintiff could not validly attach before judgment the suit property as belonging to his judgment-debtors Benavannagowda and his brothers;,that as that order had not been set aside within the time allowed by law, as required under Order 21, Rule 63, Civil P. C., it had become conclusive. The plaintiff could not in this suit put forward or claim the identical right which had been negatived in the miscellaneous ease. Mr. Sadanandaswamy, learned counsel for respondent 1, has urged that the attachment effected by his client was one before judgment and not in execution of a decree, and that consequently neither Order 21, Rule 63 which requires a suit to be filed to have an order made in a claim case set aside nor Article 11, Limitation Act which prescribes a period of one year within which such a suit must be filed applied in terms to bar the plaintiff's present suit. Moreover this suit was one for declaration of title and possession and not for setting aside the order in the claim case and it was really governed by Article 138 which gives his client 12 years from the date of confirmation of sale to bring such a suit.
6. It has been held so far back as in -- '4 Mys C C R 146 (B)' that an order passed under Section 487 of the old Code of Civil Procedure corresponding to Order 38, Rule 8 of the present Code allowing a claim to property attached before judgment in a suit is subject to the provisions of Section 283 (Order 21, Rule 63 of the present Code) and that the plaintiff's remedy to have it set aside is a suit under that section. This decision has been followed with approval in -- '51 Mys H C R 448 (C)', where reference has also been made to -- 'Pyaw Gyi Ma v. Latchmanan Chettiyar', AIR 1931 Rang 183 (D) and -- 'Maliknarjuna v. Virayya', AIR 1918 Mad 26 (FB) (E). See also -- 'Dhan Bibi v. Mrinalini Ghosh', AIR 1945 Cal 449 (P). Order 21, Rule 63, Civil P. C. declares that where a claim or an objection is preferred to an attachment the party against whom the order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.
It has been held in -- '44 Mys HCR 589 (G)', while dealing with a similar provision under Order 32, Rule 103 that the effect of the failure to file a suit within one year of an order made under Order 21, Rule 97 to set aside that order and to establish his right to present possession of the property in dispute, the claim to such possession is concluded and even as a defendant he cannot resist the recovery of possession by the opposite party. It was observed in that case that as between the parties to that order there was a bar provided under Order 21, Rule 103 and as between themselves the unsuccessful party lost his right to possession. He could not also resist the claim of the plaintiff for recovery of possession as a defendant in the suit for tne same reasons as would preclude him from suing as plaintiff to recover possession. It was further pointed out in that case that any other way of construing those provisions would be to allow the unsuccessful party to circumvent the law. See also -- 'Azizullah Khan v. Ghulam Hussein', AIR 1924 Sind 97 at p. 99 (H); -- 'Nema Gauda v. Paresha', 22 Bom 640 (I); -- 'Ma Sein-Htay v. Maung Mya', AIR 1935 Rang 161 (J), and Mulla's Code of Civil Procedure, 11th Edn; page 848 where it is observed that "subject to the re-sult of such suit the order shall be conclusive" in Rule 63 of Order 21 means that unless the suit is brought as provided in that rule the party against whom the order is made cannot assert either as plaintiff or as defendant in any other proceedings the right denied to him by the order; vide -- 'Bailur Krishna v. Lakshmana', 4 Mad 302 (K); 22 Bom 640 (I); -- 'Surnamoya Dasi v. Ashutosh Goswami', 27 Cal 714 (L); -- 'Kayyana Chittemma v. Dossy Gavaramma', 29 Mad 225 (M); -- 'Yarakayya v. Venkata Krishnamaraju'. AIR 1918 Mad 693 (1) (N); -- 'Akkammal v. Komarsami Chettiar', AIR 1943 Mad 36 (O); --'Premsukh Das v. Satyanarain Singh', AIR 1945 Pat 485 (P).
7. We have therefore to see what in this case is the nature and effect of the order passed in the claim preferred by Sundarasastry against the plaintiff who had attached the suit property as belonging to his debtors Benavannagowda and his three brothers. That order has been marked as Ex. I in this case. In his application under Order 38, Rule 8 Sundarasastry had claimed the property attached in the plaintiff's suit O. S. No. 37 of 35-36 as his own and as being in his possession and enjoyment. The plaintiff contested the claim and after recording evidence, during the course of which Sundarasastry examined himself and his tenant Nagabhatta and produced copies of the sale certificate issued in his favour, after the Court confirmed the sale in his favour a receipt evidencing delivery of possession by Court on 1-1-1935 (sic). The plaintiff examined himself, and he and a witness whom he examined gave evidence that the property belonged to the joint family of Benavannagowda and his brothers. The Subordinate Judge held that the evidence disclosed that possession of the property was with Sundarasastry and that the copy of the sole certificate showed that the same had been sold subject to a hypothecation in favour of the plaintiff. The latter and Benavannagegowda had unsuccessfully tried to have the Court sale set aside and both in the Subordinate Judge's Court and on appeal it was held that the attachment which was challenged was apparently got effected merely to harass the petitioner & could not be sustained. That order clearly recognized Sundarasastry's prior purchase under the Court sale in Ex. 191/31-32 in O. S. No. 338/26-27 to attach the property as still belonging to Benavanr.agowda and his brothers. After this order has become conclusive under Order 21, Rule 63, it would be idle for the plaintiff to contend that he can again put forward the same contention, viz., that the property belonged to the joint-family of Benavannagowda and his brothers in this suit between himself and the defendants who claim under Sundarasastry merely because he has chosen to frame it as a suit for declaration of title and possession.
8. Mr. Sadanandaswamy has urged that Article 11 does not in terms apply to the present suit as it refers to a suit to set aside or avoid the effect of an order passed in respect of an attachment in execution of a decree and not an attachment before judgment. That question has been, however, set at rest so far as our Court is concerned, and it has been held by a Bench of this Court in -- 51 Mys HCR 448 (C)', that Article 120 and not Article 11, Limitation Act applies to a suit to set aside an order made on a claim in respect of an attachment before judgment though such claim or objection was preferred after decree in the course of execution proceedings. The same view has been taken in a recent decision of the Calcutta High Court in -- 'AIR 1945 Cal 449 (P)'. The plaintiff's suit which was filed on 11-12-43 is long after even the six years prescribed by Article 120 from the date of the order in the claim case, viz., 14-8-37 even if it can be construed as one to set aside that order.
9. Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to "Government Phada" in the year 1937 for non-payment of land Revenue, whatever rights Sundarasastry acquired under bis purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it war, restored to Benavannagowcla and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting "holder" Bena-vannagowda does not wipe out all the earlier rights. It has also been held by this Court in -- 18 Mys CCR 76 (Q)', that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been "forfeited" by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge. See also -- 'Amolak v. Dhondi', 30 Bom 4G6 (R).
10. Mr. Krishnamurthi has urged that the plaintiff had deliberately suppressed the order; against the appellants in the claim case while obtaining an order for sale of the property as belonging to all the brothers and had got even Benavannagowda's right, title and interest sold up and that he cannot be permitted to come to Court to enforce such a tainted claim under a sale based on a fraud practised on the Court. It is not necessary for us to go into that question or to consider whether the suit property belonged to Benavannagowda alone or his brothers also in the view we have taken that the plaintiff is concluded by the order in the claim case and is precluded from bringing the present suit.
11. In the result this appeal is allowed and the plaintiff's suit is dismissed with costs throughout. The cross-objections are also dismissed but without costs.
Zaheera Banu Kareem vs Gomathi Bai G. Kamath on 14 June, 1993 Equivalent citations: ILR 1994 KAR 662 Author: Hanumanthappa Bench: Hanumanthappa
1. Pursuant to the Reference made by the Hon'ble Supreme Court by its Order dated 31.10.1991 in Civil Appeal No. 624 of 1973, finding of this Court is given on the Point, viz., "legal effect of the order of the restoration of the land in favour of Bashir Ahmed".
2.In order to see that both sides are given sufficient opportunity to establish their case, this case was adjourned many times as requested by both sides. Thus the matter was heard on several dates of hearing. On the Point involved both sides made me to go through various documents produced in the case, important Sections of the Mysore Land Revenue Code and the Bombay Land Revenue Code, Section 43 of the Transfer of Property Act and the Authorities relied (sic) by both sides in support of their rival contentions.
3. To give a finding on the Point of Reference made by the Hon'ble Supreme Court, it is proper to mention a few facts, as their narration will avoid the confusion which had set in.
Originally one Kaushik was the owner of the lands in dispute. He sold the said lands to one Syed Basheer Ahmed in the year 1942. The said Syed Basheer Ahmed did not pay the land revenue in respect of the lands in question for some time. As Syed Basheer Ahmed became defaulter in payment of land revenue, the State exercising its power under the provisions of the Mysore Land Revenue Code, 1888 (hereinafter referred to as the 1888 Code) forfeited the said lands to the Government during the year 1948-49. As there were no bidder, in view of Section 55 of the 1888 Code the Government itself purchased the said lands in Survey Nos. 29 and 30 of Sonnamaranahalli Village and Survey Nos. 35 and 40 of Gullia Nandi Gunta Village, Thubagere Hobli, Doddaballapur Taluk, Bangalore District. Earlier to this, there was some dispute between Padmanabha Kamath and Syed Basheer Ahmed. Padmanabha Kamath filed a suit against Syed Basheer Ahmed in the High Court of Madras in O.S.No. 148 of 1946. The said suit was decreed in favour of Padmanabha Kamath. The decree was transferred to the District Court, Bangalore, and was put in execution in Execution Case No. 6 of 1953. The Executing Court brought the lands for sale. On 3.9.1953 Padmanabha Kamath purchased the said lands as he was the highest bidder. On 7.6.1954 the sale in favour of Padmanabha Kamath was confirmed. On 16.3.1955 the Sale Certificate at Exhibit P.3 in respect of the lands in question was issued to Padmanabha Kamath. On 2.1.1965 in Misc. Case No. 127 of 1955 possession of the lands in question was handed over to the auction-purchaser, Padmanabha Kamath. Upto this date by virtue of the forfeiture of the land by the Government in the Revenue records the nature of possession was described as 'Government Phada' under the Kathedar column. On 2.1.1956 Padmanabha Kamath sold the lands under Exhibit P.1 to Smt. Gomathi Bai G. Kamath, w/o Govinda Kamath, resident of Bombay, for valuable consideration. From the date of purchase till 1960-61 the name of the plaintiff, i.e., Smt. Gomathi Bai G. Kamath, was shown in the Exhibits at Exhibit P-8 series as the, person in possession of the property either authorised or unauthorised. The plaintiff contended that during the last week of July, 1967, when the plaintiff's husband went to the lands in question, he found that the defendant, i.e., Smt. Zahera Banu Kareem, was cultivating the lands, viz., S.No. 29 and 30 of Sonnamarnahalli. This action of the defendant was objected by the plaintiff by issuing a legal notice and subsequently the plaintiff filed a suit, O.S. No. 31 of 1967, in the Court of the Principal Rural Civil Judge, Bangalore, for declaration and possession of the lands in dispute and for other reliefs, viz., mesne profits, etc. In the plaint the plaintiff contended that (i) Padmanabha Kamath by virtue of purchasing the lands in Court auction perfected his title to the lands and as she had purchased the lands from Padmanabha Kamath her title to the lands was a valid one; (ii) the right, title and interest over the lands in question were transferred to the plaintiff by such sale as per the Sale Deed dated 2.1.1956 at Exhibit P. 1.
4. In the suit the defendant filed her written statement denying the claim of the plaintiff. She contended in the Written Statement as follows:
The lands were resumed to the Government for non-payment of land revenue in the year 1948-49. The lands were shown as 'Government Phada' in the revenue records. Till 1961 the Government continued to have title over the lands. The lands were purchased by Padmanabha Kamath in Court auction in Ex.Case No. 6 of 1952-53 in execution of the decree in O.S.No. 148 of 1946 obtained by him against Syed Basheer Ahmed. As the Government had resumed the lands in question, Padmanabha Kamath did not acquire any right over the lands by such purchase. In the year 1961 after receiving the arrears of land revenue due to the Government, the lands were restored to Syed Basheer Ahmed on 22.6.1961 and in turn Syed Basheer Ahmed divided the lands and sold to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus, by restoration of the lands in question to Syed Basheer Ahmed on 22.6.1961 the lands became free from all encumbrances. On 1.4.1966 the defendant purchased the lands in question from the said Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed. Thus contending the defendant requested that the suit be dismissed as not maintainable.
5. On the basis of the Pleadings the trial Court framed the following issues:
"1. Is the Court sale in Ex.6/52-53 referred to in the plaint true and did it confer title to the plaintiff's vendor ?
2. Did the plaintiff's vendor take possession of the property in Misc. No. 127/55?
3. Has the plaintiff been the owner of the schedule property by virtue of the sale deed dated 2.1.1956 and rectification document dated 16.12.1957?
4. Was the plaintiff in possession of the schedule property ?
5. Where the suit lands resumed by the Government in the year 1948-49 as pleaded and whether Syed Basheer Ahmed, the Judgment debtor in Ex.No. 6/52-53 had no right, title or interest in the schedule property on the date of Court sale ?
6. Were the suit lands restored to him in 1961 and did he become the owner of the property in 1961 ? If so, what will be the effect of restoration of the suit land in his favour ?
7. Had the plaintiff made improvements in the land and has the defendant damaged the well, motor, etc. and is the plaintiff entitled to damages ? If so, to what amount ?
8. Is plaintiff entitled to mesne profits ? If so, to what amount?
9. To what relief, the parties are entitled ?"
In support of their case both parties produced certain documents. On the plaintiff's side the following documents were produced :
1. Registered sale deed dated 2.1.1956 in favour of the plaintiff marked with letter 'A';
2. Registered Rectification deed dated 16.12.1957 marked with letter 'B';
3. Sale certificate issued by the Court of the District Judge, Bangalore, dated 7.6.1954 marked with letter 'C';
4. Two encumbrance Certificates in respect of the suit schedule lands covering the period from 25.11.1952 to 24.7.1967 marked with letters 'D' and 'E';
5. Certified copies of Extracts for the entries made in the Index of lands and Record of Rights marked 'F-Series' (Four in number);
6. Copy of the legal notice dated 27.7.67 with postal acknowledgment marked 'G' and 'G-1'; and
7. Copy of Power of Attorney of the plaintiff.
On the defendant's side the following documents were produced:
1. Sale deed dated 1.4.66 executed by S, Nazir Ahmed;
2. Sale deed dated 1.4.66 executed by Rahantunnissa in favour of defendant;
3. Encumbrance certificate;
4. Bills issued by the Mysore State Electricity Board;
5. Cash bill of M. Srinivascharlu and Co., and
6. Guarantee card.
Before the trial Court the defendant was placed exparte. Hence, the trial Court accepting the contentions raised by the plaintiff decreed the suit. Aggrieved by the same, the defendant preferred an appeal in R.A.No. 2 of 1970 on the file of the Principal District Judge, Bangalore. Before the learned District Judge many grounds were urged. However, the relevant ground for the purpose of giving a finding on the Reference made is as follows:
"That even on merits the decree and judgment of the lower Court was unsustainable because that the plaintiff had not derived any right, title or interest under the sale deed because her vendor had not derived any right, title or interest under the Court auction sale because the judgment debtor had not any subsisting right in the property on the date of the auction."
After hearing both sides, the learned District Judge formulated several Points for Determination out of which the following Points are relevant for the present purpose:
1. "Whether the plaintiff had acquired right title, and interest under the sale deed dated 2.1.1956 under Exs.P.1 and P-2?"
2. "Whether the plaintiff was in possession and enjoyment of the suit schedule lands as asserted by her?"
3. "Whether the defendant has acquired right, title and interest in the suit schedule properties under her sale deed dated 22.6.62?"
4. "Whether she is in possession and enjoyment of the suit lands?"
The learned District Judge after considering the entire material produced found thus:
"Documents Ex.P.8 series and Ex.P.9 series unambiguously show that in 1951 the land was registered in the name of the Government, and by virtue of such transfer the original owner Syed Basheer Ahmed must be deemed to have been divested of his rights except his right to reclaim the land on payment of land revenue. When the sale was held the auction purchaser at the Court sale must be deemed to have purchased such right, title and interest as the Judgment debtor had in the said lands. Applying this standard two inferences can be drawn viz., (i) the rights of the Judgment debtor in the land were extinguished in 1951 when the Government resumed the lands subject only to the right of the pattadar to reclaim the land on payment of arrears of land revenue and (ii) that when the lands were sold by the Court in auction in execution of the decree the auction purchaser, namely, the vendor of the plaintiff derived all such rights as were with the judgment-debtor. The judgment debtor admittedly had the right to reclaim the land on payment of arrears of land revenue. Therefore, Syed Basheer Ahmed the judgment debtor had no right, title or interest after the Court sale. His rights were completely extinguished and new rights were created in favour of the auction purchaser. He and he alone could have reclaimed the land."
Thus observing the learned District Judge held that the auction purchaser perfected his title to the property subject to his payment of arrears of land revenue if and when the Government thought fit to disturb his possession or the purchaser himself thought fit to prefer his title. Making a reference to Exhibit P.4 -- the Delivery Receipt, Exhibit P-7 - the Treasury Challan dated 16.6.1959 and Exhibit P-6 -the notice dated 11.7.1961 which came into existence prior to the dispute between the parties the learned District Judge held that they conclusively establish that the plaintiff was in possession of the said lands arid cultivated the same. Thus a categorical finding was given by the learned District Judge that the plaintiff was in possession and enjoyment of the lands in question between 1956 and 1961. Whereas the suit was filed in the year 1967 and even if the defendant was in possession it will not confer any right, title and interest on the defendants. The learned District Judge also held that when the Judgment-debtor preferred the appeal challenging the exparte decree, an interim order of stpy of execution was granted subject to the condition that the judgment-debtor should furnish security for due performance of the decree. But the same was not complied with. As such the learned District Judge found that the decree obtained by Padmanabha Kamath was executed and the plaintiff was put in possession of the property. Thus holding the learned District Judge by his judgment and decree dated 14.12.1970 dismissed the appeal.
6. In R.S.A, No. 964 of 1971 the judgments and decrees of the Courts below were challenged. But, this Court rejected this Appeal at the stage of admission itself as there was no ground to interfere, by the order dated 26.10.1971. An Appeal in Civil Appeal No. 624 of 1971 has been preferred before the Supreme Court against the Order of this Court rejecting the Regular Second Appeal. In the said Appeal the Supreme Court requires a finding from this Court as to the legal effect of the order of restoration of the land in favour of Basheer Ahmed.
7. Both sides in addition to putting forth their arguments took me through the documents referred to above and the orders made.
8. Sri. Karanth, learned Counsel for the appellant/defendant, contended as follows:
The plaintiff's vendor, viz., Padmanabha Kamath, had no title over the lands, as, on the date of Court auction the Judgment-debtor/Basheer Ahmed had no right over the lands and the lands were forfeited and resumed to the Government. Subsequently, the lands came to be shown as 'Government Phada' in the Revenue records. Subsequent to the Court's auction sale and the plaintiff's vendor purchasing the lands in question, the Government restored the lands to Syed Basheer Ahmed/Judgment-debtor on receipt of the arrears of land revenue from him. By such restoration, the land became a free grant in favour of Syed Basheer Ahmed and the same was exclusively for his benefits. By virtue of such restoration Syed Basheer Ahmed acquired a title over the property and also a right to alienate the lands. Accordingly he sold the lands to Rahmathunnisa Begum alias Bathulla Begum and Nazir Ahmed from whom the appellant/defendant purchased the same. By virtue of such purchase the defendant perfected her title to the properties. Though the decree-holder/Padmanabha Kamath who was the plaintiff's vendor had initiated proceedings against Syed Basheer Ahmed earlier to forfeiture of the lands by the Government, the forfeiture took place earlier to Padmanabha Kamath obtaining a decree against Syed Basheer Ahmed and the decree-holder/Padmanabha Kamath purchased the lands in Execution Case No. 6 of 1952-53 on 3.9.1953. It was further contended by the learned Counsel for the appellant that in view of Section 54 of the 1888 Code whatever rights Basheer Ahmed had were obliterated by virtue of forfeiture of the lands by the Government. It was also contended that the question of pleading equity by the plaintiff does not arise in this case. Sri Karanth, learned Counsel for the appellant/defendant, while reiterating the above contentions raised before the Courts below submitted that in view of Section 54 of 1888 Code the decree-holder did not acquire any right, title or interest over the property and as such the transfer of the lands made by him (Padmanabha Kamath) in favour of the plaintiff was not a valid one as no title was passed on to the plaintiff. When there was a forfeiture and resumption it shall be presumed that whatever right the earlier occupant had was extinguished and by virtue of restoration of lands such occupant became a holder of fresh grant free from all encumbrances. According to him, Section 43 of the Transfer of Property Act also disentitles the plaintiff and her vendor in setting up any claim over the lands. In support of his contentions Sri. Karanth placed reliance on the following Authorities:
(1) BATCHU RAMAYYA v. DHARA SATCHI 20 Madras L.J.635, wherein the High Court of Judicature at Madras, while interpreting the scope of Section 43 of the Transfer of Property Act and alienation of service inam lands held that Section 43 of the Transfer of Property Act cannot be invoked in favour of alienee of the inam land whose alienation is wholly void under the law.
(2) PRASANNA KUMAR MOOKERJEE v. SRIKANTHA ROUT ILR Vol XL Calcutta 173, the Calcutta High Court, while considering non-payment or discontinuance of payment of rent, acquiescence, etc. held that non-payment of rent or discontinuance of payment of rent did not by itself constitute adverse possession. The relevant observations in the said Decisions regarding the scope of Section 43 and the estoppel are as follows:
"It need not be disputed that if a grantor, who has no title or a defective title or an estate less than what he assumes to grant conveys with warranty or covenants of like import, and subsequently, acquires the title or estate which he purports to convey, or, perfects his title, such after-acquired or perfected title will enure to the grantee as to his benefit by way of estoppel. .. ..
In case of a voluntary private alienation, the deed, either expressly or by necessary implication, shows that the grantor intended to convey and that the grantee expected to become vested with an estate of a particular kind: the deed may consequently found an estoppel, although it contains no technical covenents. .. ..
The case of an execution sale, however, stands on an obviously different footing. The decree-holder does not guarantee the title of the judgment-debtor; the intending purchaser knows that under the law he can acquire nothing beyond the right, title and interest of the judgment-debtor.
It was held that the extent of an execution raises an estoppel as much as in the case of conveyance, the contrary view, namely, that an execution sale of property not belonging to the judgment-debtor does not estop him from asserting against the purchaser title subsequently acquired, has been maintained in cases of recognised authority."
(3) In ABDUL REHMAN IBRAHIM v. VINAYAK JAYAVANTRAO DESHMUKH 29 Bombay L.R. 1056, while explaining forfeiture and re-sale of the mortgaged property, the High Court of Bombay held as follows:
"The right to redeem was lost owing to the forfeiture of the land under the original Section 56 of the Bombay Land Revenue Code; and that before the plaintiff could succeed he must show that the forfeiture and the revenue sale were due to the default of the mortgagee in not paying the assessment and that the income of the land was sufficient to pay the assessment or that in some way the mortgagor had put the mortgagee in funds wherewith to pay the assessment."
(4) SABAPATHI PILLAY v. THANDAVABOYA ODAYAR ILR Vol. XVIII Madras 309, the High Court of Judicature at Madras held thus:
"A purchaser bought in Court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently there was a partition decree and only some of these items fell to the share of the judgment-debtor.
Held, that the purchaser was entitled to only such of the items as are common to the sale certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate."
(5) In NANAK CHAND v. GANDU RAM AND ORS. AIR 1938 Lahore 360, the High Court of Lahore while explaining the scope of Section 43 of the Transfer of Property Act held as follows:
"where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of the sale but subsequent to sale has become entitled to such share, such person in equity should not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the Court sale because there can be no question of equities in the case of Court sale."
(6). NARAYAN GANESH VARDE v. DAUD TARAPORWALA AND ANR., , wherein the Bombay High Court explaining the scope of Section 64 of the Code of Civil Procedure held thus:
"An attachment does not create any interest in the property attached. It does not create any lien in favour of the attaching creditor. It only prevents alienation of the property on the part of the judgment-debtor, so that if the judgment-debtor alienates the property contrary to attachment, then the alienation becomes void as against all claims enforceable under the attachment under Section
(7) VEDU SHIYLAL v. KALU UKHARDU ILR Vol.37 Bombay 692, wherein the Bombay High Court while explaining the scope of Section 56 of the Bombay Land Revenue Code and the position of the mortgagor in possession and also the forfeiture of land on account of failure to pay assessment held thus:
" In 1895, the defendants Nos. 1 and 2 mortgaged their lands to the plaintiff one of the conditions of the mortgage being that the mortgagors were to remain in possession of the land, and to pay the Government assessment. Default having occurred in payment of assessment, the Collector demanded payment first from mortgagors and then from the mortgagee. The latter expressed his willingness to pay, if he was placed into possession of the land. The Collector eventually forfeited the land in 1902; but shortly afterwards re-granted it to defendants Nos. 1 and 2 under Section 56 of the Bombay Land Revenue Code Bombay Act V of 1879, amended by Bombay Act VI of 1901) on a new tenure. The mortgagee (Plaintiff) next obtained a decree on his mortgage; and in execution of it attached the land. The attachment was, however, raised by the Revenue Authorities under Section 70 of the Code. The plaintiff sued for a declaration that the land was liable to be attached and sold in execution of his decree. The Court of first instance dismissed the suit on the ground that the plaint disclosed no cause of action. On appeal:-
Held, that the land was, under the operation of Section 56 of the Bombay Land Revenue Code, vested in defendants Nos. 1 and 2 free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff."
Sri Karanth also placed reliance on the Decision of the Allahabad High Court in RADHA BAI v. KAMOD SINGH AND ORS. ILR Vol. XXX Allahabad 38, regarding the effect of Section 43 of the Transfer of Property Act; the Decision of the Privy Council in FERNANDO v. GUNATILLAKA ILR 1921 PC 138 and the Decision of the Allahabad High Court in LALA NAND LAL v. SUNDER LAL AND OTHERS AIR (31) 1944 Allahabad 17. Thus contending, Sri Karanth submitted that a finding be given that by virtue of restoration of possession, Syed Basheer Ahmed became a fresh grant-holder without any lien, charge, encumbrance whatsoever which created earlier and by virtue of such restoration Syed Basheer Ahmed acquired right, title and interest over the lands and as such the sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed was a valid transfer and the plaintiff's vendor Padmanabha Karnath did not acquire any title to the property under the Sale Certificate issued in O.S.No. 146 and 1948 on the file of the High Court of Madras and in Execution Case No. 6 of 1953 on the file of the District Judge, Bangalore. Therefore, the Sale Deed dated 2.1.1956 (Ex.P.1) executed by Padmanabha Kamath in favour of the plaintiff was not a valid one. Consequently, the Rectification Deed dated 16.12.1957 (Ex.P.2). executed by Padmanabha Kamath in favour of the plaintiff also not a valid one. Thus, he submitted that the plaintiff did not acquire any right, title or interest on the lands in question.
9. As an answer to the above contentions of the learned Counsel for the appellant/defendant, Sri Raghavachar, learned Counsel for the plaintiff/respondent, submitted as follows:
Forfeiture of the lands belonged to Syed Basheer Ahmed by the Government had not resulted in extinguishment of his right over the property. Forfeiture was merely postponement of Syed Basheer Ahmed's right of ownership. He was at liberty to re-claim the lands by paying the land revenue. Though forfeiture took place earlier to purchasing the lands by Padmanabha Kamath in Court auction, but by restoration of the lands Padmanabha Kamath became the owner of the lands from the date he purchased the same in Court auction and his sale in favour of plaintiff a valid one. By the said sale plaintiff was put in possession of the lands and continued to be in possession. By restoration, the right of Syed Basheer Ahmed which was kept in abeyance by forfeiture reverted back to the original date and therefore Syed Basheer Ahmed deemed to have, right, title and interest over the lands on the date Padmanabha Kamath obtained a decree in the High Court of Madras against Syed Basheer Ahmed. By Court safe Padmanabha Kamath became absolute owner. Thus, purchase of the lands by Padmanabha Kamath and their sale to plaintiff was quite valid. According to Sri Raghavachar, Section 43 of the Transfer of Property Act, has no application to the case on hand. He also submitted that the transfer, if any, made by Syed Basheer Ahmed in favour of the defendant was not valid in law and the same not binding on the plaintiff. Moreover from the date of Exhibit P.1 (Sale deed in favour of the plaintiff) till 1961 it was the plaintiff who was in, possession and enjoyment of the property. Syed Basheer Ahmed was aware of this plaintiff's possession. But, with a view to defraud the plaintiff, Syed Basheer Ahmed entered into secret sale transactions with Bathulla Begum and Nazir Ahmed who in turn sold the lands to the defendant. On the basis of the illegal transaction the defendant attempted to assert her title to the property. According to Sri Raghavachar, Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code differ on the effect of restoration. He also submitted that even the Authorities relied upon by Sri Karanth on facts are not applicable to the case on hand. According to him, the Authorities applicable to the case are the following:
(1) BALAJI RAO alias BALAKRISHNA RAO v. SITHA-RAMAYYA XVII Mysore Chief Court Reports 76, 273, wherein it has been held thus:
"Neither the Mysore Land Revenue Code nor the Rules thereunder contemplate the purchase on behalf of Government of land which has been 'forfeited' by reason of non-payment of the land revenue.
A mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties."
(2) In NAGAPPA GOWDA AND OTHERS v. DODDAMANE GURUPADAPPA AND ANR.AIR 1954 Mysore 39, while dealing with the effect of restoration of forfeited land to the defaulter under Section 54 of the Mysore Land Revenue Code, this Court held thus:
"Mr. Sadanandaswamy has next urged that as the suit land had been forfeited to Government under the provisions of the Mysore Land Revenue Code and transferred to 'Government Phada' in the year 1937 for non-payment of land revenue, whatever rights Sundarasastry acquired under his purchase in Court sale were lost. He represents that the khata of the land stood in the name of a deceased man Krishnabhatta when the land was forfeited; that it was restored to Benavannagowda and that the latter must be deemed to have become its absolute owner again after Sundarasastry lost his rights by the forfeiture. Section 54, Land Revenue Code is, however, clear and a mere forfeiture followed by the restoration to the defaulting 'holder' Benavannagowda does not wipe out all the earlier rights. It has also been held by this Court in '18 Mys. CCR 76 (Q) that neither the Mysore Land Revenue Code nor the rules thereunder contemplate the purchase on behalf of Government land which has been 'forfeited' by reason of non-payment of the land revenue; and a mere forfeiture, while it no doubt operates, so far as Government is concerned, as a resumption of the holding, does not unless it is folfowed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. There an exactly similar contention that the restoration of the Khata to the defaulter was equivalent to a new and absolute grant of the land freed from all previously existing rights and equities was negatived. There is therefore no substance in this contention which has been rightly held against Respondent 1 by the District Judge."
(3). In BHOGARA BHARAMAPPA v. RUDRAPPA AND ORS. AIR 1955 Mysore 13, this Court while dealing with forfeiture under the Mysore Land Revenue Code held as follows:
"Under Section 54 it is undoubtedly open to the Deputy Commissioner to forfeit not all the rights liable for forfeiture under that Section, but only those of the immediate defaulter as they stand at the time, if he thinks fit, without affecting tenure, encumbrances and rights derived from the immediate defaulter or his predecessor-in-title.
... ... ...
A mere forfeiture while it no doubt operates so far as Government is concerned, as a resumption of the holding, does not, unless it is followed by a sale, necessarily extinguish rights and equities that may be subsisting as between private parties. It is obviously open to Government, and generally followed as a policy, to restore the forfeited occupancy in the event of the arrears being paid."
(4) AMOLAK BANECHAND AND OTHERS v. DHONDI VALAD KHANDU BHOSLE AND ANR ILR Vol.XXX Bombay 466, wherein while interpreting Sections 56 and 57 of the Bombay Land Revenue Code on the arrears of assessment, forfeiture by Government, mortgage, land in possession of the occupant, regrant by Government to the occupant, suit by mortgagee to recover possession, equities arising out of the conduct of the parties, the High Court of Bombay held as follows:
"Forfeiture ordinarily implies the loss of a legal right by reason of some breach of obligation.
When arrears of assessment are levied by sale, then Section 56 of the Land Revenue Code (Bom. Act V of 1879) in pursuance of an obvious policy, empowers the Collector to sell "freed from all tenures, incumbrances and rights created by the occupant.... or any of his predecessors-in-title or in anywise subsisting against such occupant." Should the Collector otherwise dispose of the occupancy, the Section affords no such protection, and the legal relations must be determined by reference to the ordinary law. So judged, the effect of a forfeiture and the subsequent acquisition of the forfeited property are subject to the control of equities arising out of the conduct of the parties."
(5) In the case of CHANGAPPA v. SATYAPALA RFA No.110 of 1970 - 1974(2) KLJ Sh.N.No. 300, a Division Bench of this Court while explaining the revenue forfeiture of land held as follows:
"A coffee estate of 46 acres 28 guntas belonging to the joint family of S was forfeited in 1932 for arrears of land revenue. In 1957 the forfeiture was annulled and the lands were restored to the Khata of S, on his paying the arrears of land revenue. S sold the lands to defts for discharging debts contracted for obtaining restoration of the lands. The sons of S (S being dead) sued for partition and possession and for mesne profits.
Held, (1) When the order of forfeiture was annulled and the Khata restored, the old title got revived for the benefit of all the members of the joint family, subject to equities, (i.e.) the liability to contribute their share of the amount paid for obtaining restoration."
Thus arguing Sri Raghavachar submitted that mere forfeiture does not necessarily extinguish rights and equities between private parties. According to him, after forfeiture it is the normal practice of the Government to restore the property to the occupant in the event of the arrears being paid. When arrears of revenue are paid, the land will be restored to the occupant and by such restoration the position of the occupant will be as that of his original position. According to him, forfeiture does not take away the earlier rights and equities that may be subsisting as between the private parties. He submitted that the plaintiff purchased the property for a valuable consideration and started cultivating the same. Whereas the defendant on the basis of the secret and illegal sale in her favour attempted to deny the plaintiff's title to the property. The conduct of the defendant was nothing but a resultant of fraud played by Syed Basheer Ahmed, the original owner. As such the finding shall be that Padmanabha Kamath had acquired through Court auction sale a valid title to the lands and the transfer made by him in favour of the plaintiff was a valid one. By such sale transaction dated 2.1.1956 (Ex.P.1) the plaintiff acquired right, title and interest over the lands in question. Thus the sale transaction between the defendant and her vendors or prede-cessors-in-title was neither valid nor binding on the plaintiff.
10. In order to appreciate the different stand taken by both sides it is proper to extract hereunder the following provisions of the 1888 Code and the Rules and also the Bombay Land Revenue Code and Section 43 of the Transfer of Property Act. Section 54 of the 1888 Code reads thus:
"54. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrears by sale of the occupancy or alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings."
Section 55 of the 1888 Code reads thus:
"55. It shall be lawful for the Deputy Commissioner, in the event of the forfeiture of a holding through any defaulter in payment or other failure occasioning such forfeiture under the last preceding Section or any law for the time being in force, to take immediate possession of the land embraced within such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 76 of the 1888 Code speaks about the occupant or holder liable to continue for all demands until the occupancy pr holding is duly relinquished or transferred. It reads thus:
"76. The registered occupant or the holder of alienated land shall continue liable for the land revenue due on the occupancy or alienated holding and for all other lawful demands of Government in respect of the same, until such time as the occupancy or alienated holding is relinquished or transferred, under any of the provisions of this Act, to the name of any other person; and the Deputy Commissioner shall not be bound in any case to recognize any person to whom any interest in any portion of an occupancy or alienated holding has been assigned, unless the transfer has been recorded in the revenue records in accordance with the foregoing provisions."
Chapter XI of the 1888 Code deals with the realisation of the land revenue and other revenue demands. Section 142 which comes under Chapter XI prescribes that it is the primary responsibility of the registered occupant to pay land revenue of unalienated land. It reads thus:
"142. The registered occupant shall be primarily responsible to Government for the land revenue of unalienated land, and the superior holder shall be primarily responsible to Government for the land revenue of alienated land.
On failure of the person primarily responsible to Government for the land revenue to pay the same according to the rules legally prescribed in that behalf, it may be recovered from the co-occupant of unalienated land or the co-sharer of alienated land, or in either case from the inferior holder or person in actual occupation of the land.
When the land revenue is recovered from any such occupant, co-sharer, inferior holder, or other person, he shall be allowed credit for all payments which he may have made to the registered occupant, or superior holder, or to his landlord, at or after the prescribed or usual times of such payments, and he shall be entitled to credit in account with the registered occupant or superior holder or with his landlord for the amount recovered from him."
Section 152 which regulates payment of land revenue reads thus:
"152. Land revenue, except when it is recovered under the provisions of the foregoing Sections 146 to 150, shall be payable at such times, in such instalments, to such persons and at such places as may, from time to time, be determined by the orders of Government."
Section 153 says who is the defaulter. It reads:
"153. Any sum not so paid becomes thereupon an arrear of land revenue; and the persons responsible for it, whether under the provisions of Section 142 or of any other Section, become defaulters."
Section 156 which speaks about the recovery of arrears reads thus:
"156. An arrear of land revenue may be recovered by the following processes:-
(a) by serving a written notice of demand on the defaulter under Section 158;
(b) by forfeiture of the occupancy or alienated holding in respect of which the arrear is due under Section 159;
(c) by distraint and sale of the defaulter's movable property under Section 160;
(d) by sale of the defaulter's immovable property under Section 161;
(e) by arrest and imprisonment of the defaulter under Section 163 and 164;
(f) in the case of alienated holdings consisting of entire villages, or shares of villages by attachment of the said villages or shares of villages under Sections 165 to 169,"
Section 159 reads as under;
"159. The Deputy Commissioner may declare the occupancy or alienated holding in respect of which an arrear of land revenue is due to be forfeited to Government, and sell or otherwise dispose of the same under the provisions of Section 54 and 55, and credit the proceeds, if any to the defaulter's accounts."
Section 161 is as under;
"161. The Deputy Commissioner may also cause the right, title and interest of the defaulter in any immovable property, other than the land on which the arrear is due, to be sold."
Rule 38 of the Land Revenue Rules empowers the Deputy Commissioner that in his discretion he may restore any forfeited occupancy or alienated holding at any time on payment of the arrear in respect of which the forfeiture was incurred together with all costs and charges lawfully due by the defaulter.
11. The relevant provisions of the Bombay Land Revenue Code, 1879, are Sections 56, 57 and 151. Section 56 read as under:
"56. Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land or permanently fastened to anything attached to the land liable to forfeiture, whereupon the Collector may levy all sums in arrears by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules made in this behalf under Section 214, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by restoration to the defaulter, or by transfer to another person or otherwise howsoever, shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created in favour of any person other than the Government in respect of such occupancy or holding."
Section 57 of the Bombay Land Revenue Code reads thus:
"57. It shall be lawful for the Collector in the event of the forfeiture of a holding through any default in payment or other failure occasioning such forfeiture under the last Section or any law for the time being in force, to take immediate possession of such holding, and to dispose of the same by placing it in the possession of the purchaser or other person entitled to hold it according to the provisions of this Act or any other law for the time being in force."
Section 151 of the Bombay Land Revenue Code reads thus:
"151. The said processes may be employed for the recovery of arrears of former years as well as of the current year, but the preferences given by Sections 137 and 138 shall apply only to demands for the current year:
Provided that any process commenced in the current year shall be entitled to the said preference, notwithstanding that it may not be fully executed within that year."
12. Section 43 of the Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. It reads thus:
"43. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveabte property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists.
Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
Section 6(i) of the Transfer of Property Act reads as under:
"6. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:
(i) Nothing in this Section shall be deemed to authorize a tenant having an untransferrable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee."
13. Section 64 of the Code of Civil Procedure which prohibits private plienation of property after attachment reads thus:
"Section 64. Private alienation of property after attachment to be void:-
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.."
14. Though at first sight Section 54 of the 1888 Code and Section 56 of the Bombay Land Revenue Code look as identical, on a close scrutiny of the above 2 Sections it can be seen that in Section 54 of the 1888 Code a departure has been made, viz., that on forfeiture of land its disposal whether by sale or transfer to another person or otherwise howsoever De deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder except by restoration to the defaulter which means if there is any restoration of the land to the defaulter be deemed to be freed from all tenures, rights, incumbrances and equities thereto created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder will revive. Whereas Section 56 of the Bombay Land Revenue Code the word 'except' is not there. From this it is clear that Legislature thought all charges, encumbrances, etc. on the property which were subsisting at the time of forfeiture will revive in case such forfeited lands are restored to the original occupant.
15. The Authorities on which reliance was placed by Sri Karanth are those which considered the scope of Section 56 of the Bombay Land Revenue Code or the effect of Section 43 of the Transfer of Property Act and not on Section 54 of the 1888 Code. On comparison, the Authorities relied upon by Sri Karanth have no application to the case on hand so also Section 43 of the Transfer of Property Act. On the other hand, the Authorities on which reliance was placed by Sri Raghavachar in all fours are applicable to the case on hand. Where Section 54 of the 1888 Code was an issue for consideration, this Court found that forfeiture does not extinguish the right and equity between private parties and also held that by restoration the properties have been reverted back to the original position. Apart from this, the evidence available in the case goes to show that subsequent to Court auction Padmanabha Kamath sold the land to the plaintiff who continued in possession till 1961. There is nothing to show that during this period either Syed Basheer Ahmed or the Government was in possession of the lands. Further, there is nothing to show that after the arrears were paid and before the restoration a request was made to the Court by auction purchaser that he is relinquishing his rights over the lands. The possession of the plaintiff was also not an illegal one, as her vendor was put in possession of the lands at the instance of the executing Court. The Judgment debtor did not choose to challenge the same. Thus, the plaintiff's vendor was in lawful possession at the time of the sale deed in favour of the plaintiff (Exhibit P.1). He (Plaintiff's vendor-Padmanabha Kamath) had absolute right to transfer the lands which he transferred to the plaintiff under the sale deed, Exhibit P.1. Hence, restoration of land in favour of the Judgment-debtor Syed Basheer Ahmed - did not make him a fresh grantee. But, on the other hand he was placed in the original position, viz., position in which he was the owner on the date of forfeiture. As an owner he was entitled to be in possession. When he suffered a decree and his properties were brought to sale to satisfy the decree, the Judgment-debtor (Syed Basheer Ahmed) did not choose to challenge it. Hence, the purchase by Padmanabha Kamath a valid one. The purchase of the lands by Padmanabha Kamath in Court auction and the sale by him to the plaintiff were all earlier to the sale transactions that took place between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and the subsequent sale by Bathulla Begum and Nazir Ahmed to the defendant on 1.4.1966. On the date of sale by Syed Basheer Ahmed in favour of Bathulla Begum and Nazir Ahmed whatever rights Syed Basheer Ahmed had on the lands had already been conferred on Padmanabha Kamath by the Court auction sale and such rights in turn were transferred by Padmanabha Kamath in favour of the plaintiff under the sale deed Exhibit P.1. Hence, the sale transactions between Syed Basheer Ahmed and Bathulla Begum and Nazir Ahmed and between Bathulla Begum and Nazir Ahmed and the defendant were inoperative and not binding on the plaintiff. The possession of the defendant, if any, was also illegal and unauthorised.
16. Hence, my finding as to the legal effect of the order of the restoration of the land in favour of Syed Basheer Ahmed is that it revived his ownership and whatever right, title and interest he had over the lands as on the date of forfeiture of the said lands reverted back. By purchasing the said lands in Court auction, Padmanabha Kamath became an absolute owner of the lands. Transfer of the said lands by him to the plaintiff a valid one. Thus the plaintiff acquired right of ownership over the lands. Whereas, the sales by Syed Basheer Ahmed to Bathulla Begum and Nazir Ahmed from whom the defendant purchased the lands in question were neither valid nor binding on the plaintiff, as prior to these sales whatever right, title and interest Syed Basheer Ahmed had over these lands in fact had extinguished and had vested in Padmanabha Kamath and he in turn had conveyed the same to the plaintiff by way of sale.