Dr. Anshuman, J. – Heard learned Sr. Counsel for the appellants and learned counsel for the respondents.

2. The present Second Appeal has been filed by the defendants-respondents-appellants against the judgement passed on 27.02.1988 and decree prepared on 14.03.1988 by the learned 6th Additional District Judge, Rohtas in Title Appeal No. 88 of 1981 reversing and setting aside the judgement passed on 31.08.1981 and decree prepared on 10.09.1981, by the learned 3rd Additional Munsif, Sasaram in Title Suit No. 228 of 1968 by which the suit of the plaintiff-appellants-respondents was dismissed.

3. Vide order No. 3 dated 29.01.1990, the following substantial questions of law were formulated at the time of admitting the present Second Appeal: –

“(a) Whether the lower appellate Court has decided the appeal in a perfunctory way and has failed to consider the bar of the suit under the proviso of Section 34 of the Specific Relief Act and Order XXI Rule 92(3) of the CPC ?

(b) Whether in view of the bar placed by Order XXI Rule 92(3) of the C.P.C., the lower appellate Court was legally entitled to consider the question of infirmity in publishing and conducting the sale ?”

4. The plaintiff – appellant - respondent (Kalika Chaudhary, son of Manmohan Chaudhary and Devendra Chaudhary, son of Ram Sagar Chaudhary) had filed a Title Suit No. 228/1968 for declaration and setting aside the auction sale dated 14.09.1965 of the land described at the foot of the plaint, is void, nullity and the same is not binding upon the plaintiffs.

5. The case of the plaintiff is that they and the proforma defendants are descendants of Ramgulam Chaudhary. The genealogy table of the family of Ram Gulam Chaudhary is as follows: –

6. It has been mentioned that the suit properties are the ancestral property of Ram Gulam Chaudhary. His sons Ram Charitar Choudhary, Ayodhya Choudhary and Dukhi Choudhary. Ram Charitar Choudhary died issueless. Ayodhaya Choudhary had two sons, namely, Bhagwat Choudhary and Ram Chandra whereas Dukhi Choudhary had two sons namely, Yogendra Choudhary and Manmohan Choudhary. Son of Manmohan Choudhary is plaintiff No.1 and grand-son of Ram Chandra Choudhary is plaintiff No.2 and the other persons shown in the genealogy table are the proforma defendants in the suit. The property described in the Schedule of the plaint is situated at Mauza Rampur Naresh, Revenue P.S. No. 394, Tauji No. 7418, P.S. Karhgar, District Sahabad appertaining to Khata No. 138 Plot No. 463 total area 2 acre 17 decimals is the ancestral property of the plaintiffs whose cadastral survey has been recorded in the name of the common ancestor Ram Charitar Choudhary, Ayodhya Choudhary and Dukhi Choudhary. The plaintiffs further claimed that they are by caste nonia and belong to the backward class and come under the category of protected tenant under the Bihar Tenancy Act, 1885 (hereinafter referred to as the ‘B.T. Act’). The plaintiffs state that Manmohan Choudhary and Bhagwat Choudhary had executed a usufructuary mortgage in favour of Indradeo Upadhyay (defendant-respondent-appellant) without any authority on 16.06.1961 but the mortgagee did not come in possession of the said land by virtue of the said usufructuary mortgage (rehan). Said Manmohan Choudhary executed a kabuliyat patta in favour of Indradeo Upadhyay (present appellant) and agreed to pay actual rent for the suit land at the rate of Rs.605/- on 02.07.1961. In result, the suit land continued to be in possession of the proforma defendant. It has been pleaded in the plaint that the said rehan dated 16.06.1961 executed in favour of the appellant was illegal, void and inoperative, which is not binding upon the plaintiffs-appellants-respondents. It has been stated that since the alleged mortgagor belongs to the backward class under the category of Protected Tenant under the B.T Act. Therefore, for the purpose of obtaining mortgage, permission from the Collector was mandatory but the present appellant had not taken any permissi