Decided on August 19,1968

P.S.SOMA IYER Respondents


- (1.) Defendants 1 and 2 are the appellants in this second appeal. The suit against them was for compensation for use and occupation. The plaint property belonged to one Krishnadas. For arrears of income tax due, the property was brought to sale in revenue recovery proceedings and purchased by the plaintiff on 15-5-1954. There were two buildings in the property buildings; bearing numbers 682 and 683 which were both occupied by the defendants. Till 30-11-54 that is, the date of confirmation of the sale the defendants were in possession and they were taking the usufructs from the property. On 30-11-54 they were dispossessed of the compound; but at their request they were allowed to continue their residence in the buildings, on their agreeing to compensate the plaintiff for the loss of rent that he was likely to sustain thereby. On 21-10-1955 the defendants were dispossessed of the buildings also; but nothing was paid by them by way of damages for the period between 30-11-54 and 21-10-55 as was agreed to by them. Accordingly the suit was instituted for damages for the said period. The defendants contested the claim and slated that they got knowledge of the sale only on 1-12-54. Thereafter the income from the property was not taken by them. They are not liable for any amount by way of damages or otherwise to the plaintiff from 15-5-54 to 1-12-1954. After 1-12-54 they were in occupation of the buildings by permission from the plaintiff and there was no agreement to pay any amount by way of damages for use and occupation or on any other account. The learned Munsiff accepting the above contention of the defendants has dismissed the suit; but the decree was reversed in appeal by the learned Subordinate Judge of Kozhikode. There a decree was granted to the plaintiff for Rs. 1674-54 np. with proportionate costs.
(2.) On behalf of the appellants it is contended that even though the revenue sale was held on 15-5-54 it was confirmed only on 30-11-54 and only from the latter date the plaintiff will be entitled to claim any damages from the defendants. Relying on O.21 R.95 and 96 of the C.P.C. it is contended for the appellants that the title of the plaintiff would become absolute only from the date on which the sale is confirmed. It is true that the purchaser's title becomes perfected and complete only on the issue of the sale certificate. But under S.65 of the C.P.C. the property is to be deemed to have vested in the purchaser from the date of the sale. The purchaser, therefore, is entitled to the profits of the property from the date of sale. S.65 reads:- "Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute."
(3.) So even though the property does not vest in the purchaser until the sale has become absolute, when it does vest in him it shall be deemed to have vested on the sale becoming absolute, from the time it was sold. The vesting of the property is thus made to relate back to the date of sale (vide 1967 (1) SCWR 863 and also AIR 1946 Pat. 306), even when the sale is held by the Collector under rules framed by the local Government under S.68 of the Code and the auction purchaser is entitled to sue for profits from the date of the purchase. (Vide Mulla's C. P. C. 13th Edn. Vol. 1, P.321). But according to the learned counsel for the appellants S.65 C.P.C. is not applicable to the present case since sale in the present instance was under the Revenue Recovery Act. I do not think the C.P.C. is made expressly inapplicable to the sales under the Revenue Recovery Act; but all the same even under the Revenue Recovery Act it has to be presumed that the purchaser gets title to the property from the date of the sale. S.43 of the Revenue Recovery A is pertinent in this connection. S.43 reads:- "Arrears of rent which on the date of sale may be due to a defaulter from his undertenant shall in the event of the sale be recoverable by him after the sale by any process except distraint which might have been used by him for that purpose before the said sale." This means that the defaulter is not entitled to collect any rent from his undertenant after the sale. Even though the sale is confirmed and the sale certificate issued at a later date the right of the defaulter (defendant) to collect rent from his undertenant ceases by the sale. This is because his title has been lost by the sale. Thus there cannot be any dispute on the point that from the date of sale the plaintiff is entitled to the usufructs of the property.;

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