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1997 Supreme(All) 353
IN THE HIGH COURT OF ALLAHABAD
S. K. PHAUJDAR
DINA NATH SINGH - Appellant
Versus
PARAS NATH MISHRA - Respondents
Second Appeal 109 Of 1997
Decided On : 04/02/1997
D.M.TRIPATHI, S.N.SRIVASTAVA, Sankatha Rai, SUDHAKAR PANDEY, VIVEK CHAUDHARY
A sale of property to recover arrears of land revenue is void if the property sold does not belong to the debtor.
Headnote:
U. P. Z. A. AND L. R. ACT - SECTION 279, 280, 281, 284, 285A, 286, 294 - RULES 281, 282, 285A - SALE OF PROPERTY - RECOVERY OF ARREARS OF LAND REVENUE - PROCEDURE - PROPERTY SOLD NOT BELONGING TO DEBTOR - SALE VOID - DECREE AGAINST LUNATIC WITHOUT APPOINTMENT OF GUARDIAN - SALE IN EXECUTION - VOID AB INITIO.
Fact of the Case:
Plaintiff Paras Nath Mishra filed a suit for a declaration that an auction sale of the suit property and its subsequent confirmation were illegal and void. He claimed that he had purchased the suit property from the defendant No. 5, Jainath Pathak, and was in occupation of the same as owner thereof. Jainath Pathak had taken a loan from the U. P. State Co-operative Land Development Bank and had paid back the dues on 26-4-89. The bank had proceeded to recover the dues prior to 26-4-89 and the District Magistrate had issued a warrant of recovery. After payment, the recovery could not be made from Jainath Pathak, but on 3-5-89, the suit properties were sold in pursuance to the recovery proceedings. The plaintiff contended that the auction sale was fraudulent as Jainath Pathak had already paid back the dues and his lands were not open to be auctioned.
Finding of the Court:
The court held that the sale in favor of the defendant-appellant was a nullity as the property sold did not belong to Jainath Pathak on the date of the auction sale. The court relied on the Supreme Court decision in AIR 1968 SC 954 : (1968 All LJ 545), which held that a decree passed against a lunatic without the appointment of a guardian is a nullity and the sale held in execution of that decree is void ab initio.
Issues: 1. Whether the auction sale of the suit property was legal and valid. 2. Whether the property sold belonged to Jainath Pathak on the date of the auction sale.
Ratio Decidendi: The court held that the sale of the property was void as it was not the property of the debtor, Jainath Pathak, on the date of the auction sale. The court relied on the provisions of the U. P. Z. A. and L. R. Act and Rules, which provide that only the property of the debtor can be sold to recover arrears of land revenue. The court also relied on the Supreme Court decision in AIR 1968 SC 954 : (1968 All LJ 545), which held that a sale held in execution of a decree passed against a lunatic without the appointment of a guardian is void ab initio.
Final Decision: The court dismissed the appeal and upheld the judgment and decree of the lower courts, which had declared the auction sale and its subsequent confirmation to be illegal and void.
( 1 ) THIS second appeal is directed against the judgment and decree dated 4-11-96 passed by the District Judge, Ballia, in Civil Appeal No. 21 of 1996 whereby the District Judge had confirmed the judgment and decree dated 31-5-96 recorded by the civil Judge (Senior Division), Ballia, in Suit No. 94 of 1993.
( 2 ) THE suit in question was filed by Paras Nath Mishra, respondent No. 1 in the present appeal. He had instituted the suit for a declaration that an action sale of the suit property dated 3-5-89 and its subsequent confirmation dated 13-6-89 and the sale certificate dated 21-5-93 were illegal and void. He made a prayer for a further declaration that the aforesaid sale had not conferred any right on the defendant. Accordingly the plaintiff prayed for an injunction so that the defendant No. 5 (present appellant) may not disturb the possession of the plaintiff on the basis of the aforesaid auction sale. It was his case that he purchased the suit property by registered sale deed from the defendant No. 5, Jainath Pathak, and was in occupation of the same as owner thereof. His name stood recorded in the revenue record for the suit properties. This Jainath Pathak had taken a loan from the U. P. State Co-operative Land Development Bank and he had paid back the dues on 26-4-89. The bank had proceeded to recover the dues prior to 26-4-89 and the District Magistrate had issued warrant of recovery. After payment the recovery could not be made from Jainath Pathak, but on 3-5-89 the suit properties were sold in pursuance to the recovery proceedings. This auction sale was fraudulent as Jainath Pathak had already paid back the dues and his lands were not open to be auctioned. The old plots were given in mortgage as security to the loan and the new plots could not have been sold. The bank failed to intimate the District Magistrate that the money has been paid back and for a paltry sum of Rs. 1690. 00 a property worth of Rs. 86,000. 00 was fraudulently sold away. Sale was made only in respect of one third share in the suit property but the sale certificate was issued without any boundary of the land sold. The plaintiff further stated that when he came to know of the auction sale, he raised an objection on 27-9-89. The Sub-Divisional Officer, Ballia, rejected it on 13-6-89 on the ground that it was brought on the record only on 5-6-89. The procedure was against the provisions of the U. P. Z. A. and L. R. Act. The plaintiff filed an appeal before the Commissioner, Varanasi, but no stay order was passed. Hence he moved the application on 16-6-89 before the High Court and got an interim stay order against dis-possession. The writ petition, however, was dismissed on a technical ground on 21-5-93 standing that the petitioner-plaintiff could not have moved the High Court after having moved an appeal beforethe Commissioner. Immediately on the next day of the dismissal of the writ petition the Subdivision Officer issued the sale-certificate and declared the sale purchaser to be in possession of the suit properties and directed the fact to be registered before the sub-Registrar, Ballia, although his initial order dated 13-6-89 stood stayed up to 13-8-89 in Revision No. 14 of 199293 by the Commissioner. It was urged in the plaint that the Sub-Divisional Officer was not empowered to issue the sale certificate and to declare the sale purchaser to be in-possession. The plaintiff had been in cultivating possession of the suit properties and the sale and subsequent order had cast a doubt on his title and hence the suit was filed after service of notice under Section 80 CPC.
( 3 ) THE auction-purchaser Dinanath Singh contested the suit and denied the averments made in the plaint. It was asserted that the auction sale was legal. It was legally confirmed and sale certificate was legally issued without violation of any order. It was stated that the plaintiffs suit was barred under different provisions of law and plaintiff could not get any
