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TMI Blog2001 (7) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... Da, and red colour in plaint map. The case of the appellants, briefly stated was that the house shown with letters Aa, Ba, Sa, Da, existing over plot No. 905 of mohatla Daraganj. Allahabad city, was constructed by their father Ram Avtar and he was in possession over it till his life time. The open land shown with green colour in the plaint map was appurtenant to the said house and was being used by their father for the purpose of 'sehan' for tethering cattle, preparing cow dung cakes and for keeping other domestic articles. After death of their father, the appellants came in possession over the house and the land in suit as its owners. They further pleaded that their father Ram Avatar had perfected his title over the house and land in suit by way of adverse possession and the same was inherited by the appellants. Respondent Bal Krishna Chaturvedi had no concern or connection with the house and land in suit, but he threatened to lake forcible possession over it. They further alleged that the mental condition of their mother was not sound and, therefore, she was not competent to become their next friend. 3. Respondent No. 1 Bal Krishna Chaturvedi contested the above suit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as registered as M.C. No. 46 of 1966. Smt. Ram Kali v. Bal Krishna Chaturvedi, and was dismissed on 4.3.1967 by 1st Additional Civil Judge and the possession of Bal Krishna was upheld. Thereafter no declaratory suit was filed by Smt. Ram Kali or her sons and order dated 4.3.1967 became final. After filing written statement by Bal Krishna Chaturvedi in Suit No. 91 of 1968 filed by appellants Krishan Mohan and Ram Mohan. Smt. Ram Kali took unlawful possession of the property in the middle of June. 1968, which compelled him to file the suit. 5. The appellants Krishna Mohan and. Ram Mohan contested the above suit on the grounds which they had taken in their Suit No. 91 of 1968 and raising further pleas of nonjoinder and limitation etc. 6. The trial court [Additional Civil Judge) framed necessary issues in both the suits, separately but consolidated the above suits and decided the same by a common Judgment. On considering the evidence of the parties, the trial court held that Ram Mohan and Krishna Mohan had not been able to prove that they are owners of land in suit ; that according to sale certificate Bal Krishna Chaturvedi purchased plot No. 905 which was parti land and not structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s house standing over it and Smt. Ram Kali took forcible possession over the same in June, 1968. The suits have been filed within time and Bal Krishna Chaturvedi was entitled to take possession of the land as well as the house standing over the same. With these finding, the lower appellate court concluded that Suit No. 91 of 1968 filed by Krishna Mohan and others against Bal Krishna Chaturvedi was liable to be dismissed in (oto while Suit No. 164 of 1971 filed by Bal Krishna Chaturvedi against Ram Kali and others was to be decreed. It accordingly allowed Civil Appeal No. 45 of 1979 and 46 of 1979 filed by Bal Krishna Chaturvedi respondent No. 1 and dismissed Civil Appeal No. 571 of 1979 and 642 of 1979 filed by appellants Krishna Mohan and Ram Mohan and decreed the Suit No. 164 of 1971 in toto and dismissed Suit No. 91 of 1968 in toto. 9. The above judgment and decree of lower appellate court has been challenged by the appellants In these second appeals. 10. The above second appeals were admitted on the following substantial question of law : Second Appeal No. 1611 of 1982 (A) Whether Sections 5 and 8 of Transfer of Property Act apply in respect of the property sold in auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Substantial Question Nos. A and B of Second Appeal No. 1840 of 1982. The above questions are closely connected with each other and are taken up together for findings. 14. The appellants alleged in their plaint of Suit No. 91 of 1968 that the house in suit was constructed by their father Ram Avatar and the remaining open land was being used as sehan land. Admittedly, the land in suit is part of plot No. 905 and house existing thereon was numbered as 587 in Nagar Mahapalika records. The contention of the respondent No. 1 Bal Krishan Chaturvedi was that he purchased the entire Plot No. 905 with structure existing thereon in auction sale on 22.4.1961 in Execution Case No. 11 of 1960 arising out of Original Suit No. 59 of 1957. 15. The trial court on consideration of documentary as well as oral evidence of the parties held that Bal Krishna Chaturvedi purchased Plot No. 905 which was a parti land and not the structure existing over it. Bal Krishna Chaturvedi, therefore, cannot be said to have become owner of the structure in suit as only land was auctioned which he purchased in auction sale. The lower appellate court also recorded a finding that the property sold in auction has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other property yielding income, the Interest or income thereof accruing after the transfer taken effect." 18. The application and effect of above Section 8 was considered in the above noted Full Bench decision of this Court which consisted of five Hon'ble Judges of this Court. The question referred to the Full Bench was "whether the property in the house in suit passed to the plaintiff Khacheru Singh under the auction sale of 26th January, 1932 or not?" The majority decision of Full Bench was as below : "Section 8 of the Transfer of Property Act does not apply to a transfer which takes place by operation of law or by a Court sale. Section 2, Clause (d) of Transfer of Property Act provides : But nothing herein contained shall be deemed to effect : (d) save as provided by Section 57 and Chapter 4 of this Act, any transfer by operation of law or by, or in execution of decree or order of Court of competent Jurisdiction..... Whether the question is what has been sold in a Court sale, it will have to be decided from what the Court intended to sell and will be judged from the sale certificate issued by the Court," It was further held by the majori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3(b) of Transfer of Property Act. In support of his above contention, he placed reliance in the following decisions ; Commissioner of Income Tax v. Bhurangaya Coal Company [1958]34ITR802(SC) ; Divisional Forest Officer. Sarahan Forest Division of Simla v. Daut and others [1968]2SCR112 : Mrs. Christine Pais v. K. Ugappa Shelly AIR 1966 Mys 299 ; M. S. Boda Narayana Murthy and Sons v. Valluri Venkata Suguna AIR1978AP257 ; Ram Dayal v. L. Mishri Lal. 1972 ALJ 333 and Bhoop Singh v. Sri Ram AIR1940All427 . 21. Having gone through the above decisions. I find that those decisions do not relate to the matter under controversy involved in these appeals. 22. The case of Commissioner of Income Tax v. Bhurangaya Coal Company (supra) was a case of private sale of immovable property and therefore, it was held that as to the sale of immovable under the sale deed dated 17.5.1946 the matter was governed by Section 8 of the Transfer of Property Act under which unless a different Intention was expressed or necessarily implied a transfer of property passed forthwith to the transferee all the interest which the transferor was then capable of passing in the property and in the legal incidents there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gets only that much what is sold and not more than it. Therefore, the above decision is also not applicable to the facts of present case. Moreover in view of the Full Bench decision of this Court, the decision of the Hon'ble single Judge of another High Court will not override the principle laid down by the Full Bench. 25. In M/s. Boda Narayan Murthy (supra), a Division Bench of the Andhra Pradesh High Court held that even though the title deed deposited relates to land only, if at the lime the deposit was made, there were any structure on it, equitable mortgage would be created both with regard to the land as well as the structures thereon. The facts of the above case are also distinguishable from the facts of the present case and the above decision does not help the respondent No. 1. 26. In the case of Ram Dayal v. L. Mishri Lal (supra) the dispute related to Plot No. 148. Plaintiff claimed proprietorship of 11 biswas area while defendant was Zamindar of balance 10 biswas area. Defendant made construction on said plot. Plaintiff complained that the construction had been made on plaintiffs 11 biswas area and filed suit for demolition of the construction, injunction, poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i cannot be said to have acquired any right, title or interest over house No. 587 by virtue of provisions of Section 8 of Transfer of Property Act. The findings of the lower appellate court, contrary to it, therefore, cannot be sustained. The questions are answered accordingly. Substantial Question No. C of Second Appeal No. 1611 of 1982, C of Second Appeal No. 1840 of 1982 and No. 1 of Second Appeal No. 2214 of 1982 : These questions are identical and are taken up together. 32. As held by Full Bench decision in Umrao Singh v. Khacheru Singh (supra), the sale certificate is title deed of the auction purchaser. Dakhalnama is a document showing factum of delivery of possession. Dakhal or possession is delivered according to auction sale or sale certificate. Thus, the title of the auction purchaser is derived from the sale certificate and not from the Dakhalnama which is simply a document of delivery of possession. Therefore, the Dakhhalama cannot be said to be a title deed and it can also not be said the basis of claim or defence. The questions are answered accordingly. Substantial Question Wo. D of Second Appeal No. 1611 of 1982, D of Second Appeal No. 1840 of 1982, 2 of Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms that house No. 587 was constructed over plot No. 905. Now contention of the learned counsel for the appellants was that above admission of appellant No. 1 in the written statement was erroneously made and Is not binding on him. For proving any admission erroneous, the party concerned or a person claiming through him must explain and prove that the admission was erroneous. No such attempt was made by Krishna Mohan, appellant No. 1 either in his written statement or in his evidence. Therefore, the bare arguments without any basis is not tenable. The points are answered in the negative. Substantial Question No. B of Second Appeal No. 1611 of 1982, E of Second Appeal No. 1840 of 1982 and 4 of Second Appeal No. 2830 of 1982. 35. Learned counsel for the appellants contended that Dev Narain, D.W. 2 witness of respondent No. 1 has admitted in his evidence that Ram Avtar, the father of appellant was residing in the house over land in suit and was tethering cows and she-buffaloes over the open land for the last 20 years and after the death of Ram Avtar, Krishna Mohan and Ram Kali came in possession over the disputed house and land and were In possession till date. That the above adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a witness is not binding on the party. The admission of a witness may be used for the purposes of contradiction or drawing an inference by the Court. In any way the admission of a witness cannot be treated an admission of a party and is not binding on the party. The points are answered accordingly. Substantial Question No. 4 of Second Appeal No. 2214 of 1982 and I of Second Appeal No. 2930 of 1982. 38. The contention of the learned counsel for the appellants was that the land in suit was not purchased by respondent No. 1 through auction sale as the boundaries given in sale certificate do not tally with the boundaries of the land in the suit. It may be mentioned at the very outset that this question was not raised before the trial court or the lower appellate court. No plea was taken that the land in suit mentioned in the plaint of Suit No. 164 of 1971 was not identifiable on the spot. Moreover, a commission was issued by the trial court to prepare map of suit land. The Commissioner has shown the land in suit with boundaries in the map. The above boundaries tally with the boundaries of the land given in the sale certificate. There is nothing on record to show that the land pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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