Judgment

SARKARIA, J.:- This appeal is directed against a judgment, dated May 4, 1970, of the High Court of Allahabad*. It arises in these circumstances:

* Reported in AIR 1970 All 544 (FB).

One Matadin, father of Ram Lochan, respondent 6 herein, was a fixed rate tenant of the plots in dispute measuring 2.11 acres. One Ram Naresh Singh (deceased), brother of appellant 1 herein, namely Mahadeo Prasad Singh obtained a money decree against Matadin on February 18, 1953 from the judge, Small Cause Court, Varanasi in Suit No. 847 of 1953. Ram Naresh Singh sought to execute the decree. As a consequence, the decree was transferred from the Court of the judge of Small Causes to the Court of Munsif, Varanasi, for execution. The plots in dispute were put to auction by the executing court, and were purchased by the decree-holder on July 20, 1956. The sale was confirmed on August 29, 1956 and the sale certificate was issued on September 8, 1956. The decree-holder-purchaser, Ram Naresh Singh, took delivery of possession over these plots on March 14, 1957. Thereafter, he further sold the plots to appellant 2 and respondents 6 to 10.

2. Matadin, however, died sometime in 1960. Thereafter, his sons Ram Lochan respondent 1, herein, instituted a suit on June 14, 1961 i. e. more than three years after the delivery of possession to the decree-holder-purchaser, Ram Naresh Singh, under Section 229B read with Section 209 of the U. P. Zamindari Abolition and Land Reforms Act in the Revenue Court against the present appellants, for a declaration that he is in possession of the suit land as Bhoomidar. In the alternative, he claimed the relief of possession on the same basis. He pleaded that his father, Ram Naresh. Singh (sic) (Matadin) was the original Bhoomidar and remained in possession of the suit land till his death and thereafter, the plaintiff as the heir of the deceased continued in possession as Bhoomidar. He further alleged that the sale in favour of Ram Naresh Singh was without jurisdiction and a nullity, as it had been made without the knowledge of or notice to his father.

3. The suit was resisted by the appellant, who is original defendant 1, and respondents 7 to 10, who are original defendants 2 to 5, inter alia-on the ground that the suit was barred as res judicata and also under Section 47 of the Code of Civil Procedure, and Article 181 of the Limitation Act. Defendants 2 to 5 further pleaded that they were bona fide purchasers for value and, therefore, their rights in the suit land were protected under Section 41 of the Transfer of Property Act. They also, alleged that they had made improvements on the suit land and were entitled to the benefit of Section 51 of the Transfer of Property Act.

4. The trial court, by its judgment, dated August 30, 1965, dismissed the suit, holding, inter alia, that it was barred by the principle of constructive res judicata as also under Section 47 of the Code of Civil Procedure, that the Revenue Court had no jurisdiction to entertain and try the suit, that appellants 6 to 10 were bona fide purchasers for value and, as such, were entitled to the benefit of Ss. 41 and 51 of the Transfer of Property Act, that the suit was barred by Art. 181 of the Limitation Act, 1908 as well as by S. 34 (5) of the U. P. Land Reforms Act; and that Ram Naresh Singh had been in possession since March 14, 1967, i. e., the date on which he obtained delivery of possession in execution of his decree as auction-purchaser.

5. Aggrieved, the plaintiff (respondent 1) preferred an appeal to the Court of the Additional Commissioner, Varanasi, who by his judgment dated December 28, 1965, allowed the appeal and held that the executing Court had no jurisdiction to sell the suit land under Section 42 of the Code of Civil Procedure, as amended by the U. P. Civil Laws (Amendment) Act 1954 and that the suit was not barred as res judicata or under Sec. 47 of the Code of Civil Procedure. The Additional Commissioner further held that the possession of Ra