MOTILAL YADAV Vs. JAISAY

JUDGEMENT

(1.) By this common order Second Appeal No. 344/2001 preferred by defendant No. 3 Motilal Yadav and Second Appeal No. 399/2001 preferred by defendant No. 2 Manager, District Co-operative Land Development Bank Limited, Ambikapur is disposed of as both the appeals arise out of common judgment and decree passed by the Court below. The respondents No. 1 to 6 in both the appeals were the plaintiffs whose suit for setting aside the auction sale dated 09/06/1989 and confirmation of sale dated 25/08/1989 as also for permanent injunction, was dismissed by the trial Court, however the first appeal preferred by the plaintiffs has been allowed and as a consequence their suit has been decreed.

(2.) Case of the plaintiffs, as emerging from the plaint averments, is that the lands covered in Schedule 'A' admeasuring 10.89 acres situated at village Sakholi, Tahsil Lundra, District Surguja is their ancestral property in which ancestor Malhau has half share and other half share was owned by Chhejaku and Kitu. After death of Kitu who was issueless, the other half share was owned by Chhejaku and after his death plaintiffs No. 3 to 6 succeeded the property. Plaintiffs No. 1 and 2 are the legal representatives of Malhau. The lands in Schedule 'A' fell in the share of plaintiffs and defendant No. 4 who is also one of the son of Malhau, in the partition affected in the year 1980, however the revenue records continued to remained joint. Defendant No. 4 Thularam obtained loan of Rs. 5,000/- and mortgaged the property with defendant No. 2 who is the appellant of Second Appeal No. 399/2001. The revenue records were corrected in 1980 and the records were updated as Schedule 'Ka' 'Kha' 'Ga' and 'Gha' with the plaint.

(3.) It was further stated in the plaint that on account of default in payment of loan the land was sold in auction for Rs. 34,000/- in April 1989, however the sale was later on cancelled. In June 1989 the lands were again put to auction and without giving information to the plaintiffs it was sold in favour of defendant No. 3 Motilal Yadav for Rs. 41,100/-, whereas the market value of the land on the date of auction was more than Rs. 1,00,000/- and further that the rules concerning auction have not been followed and it was overlooked that after sale of the property the plaintiffs would be having less than 5 acres of land. It was alleged that the Sale Officer colluded with defendant No. 3 Motilal Yadav and instead of selling lands belonging to Thularam the entire land were sold and the illegal sale dated 09/06/1989 was later on confirmed on 25/ 08/1989 without giving opportunity of hearing to the plaintiffs. According to the plaintiffs no lands would remain with the plaintiffs No. 3 to 6 after the questioned sale and for this reason also the sale deserves to be cancelled.