RAM LOCHAN Vs. MAHADEO PRASAD SINGH AND ORS.

JUDGEMENT

(1.) I have had the advantage of reading the judgment prepared by my brother Sinha, J. With all respects, however, I find myself unable to concur with the view taken by my learned Brother.

(2.) The present Special Appeal came up for hearing before a Division Bench, As on one of the points involved in the case there was conflict of judicial opinion, the Division Bench referred the case to a larger Bench. This is how this appeal came up before this Bench.

(3.) In order to appreciate the points involved in this case a few facts would be necessary. Matadin, the father of Ram Lochan appellant, was a fixed rate tenant of the plots in dispute. One Ram Naresh. obtained a money decree against Matadin from the Court of Judge, Small Causes in the year 1953. He sought to execute the decree by attachment and sale of the immovable property of the judgment -debtor. As under the rules the Small Cause Court had no jurisdiction to execute the decree by attachment and sale of Immovable property, the decree -holder applied for the transfer of the decree to the Court of Munsif, Varanasi, for execution. The transferee Court ordered execution by sale of the plots in dispute and transferred the decree for auction sale to the Collector, Accordingly the plots in question were put to auction sale and were purchased by the decree -holder himself on 20th July, 1956. The sale was confirmed on 29th August, 1956, and sale certificate was issued on 8th September, 1956. The Dakhalnama on the record indicates that the decree -holder obtained possession on 14th March, 1957. He got his name recorded in the revenue papers also on the basis of the auction sale. On 4th March, 1960, the decree -holder -auction -purchaser sold the said plots to respondents Nos. 2 to 6. The judgment -debtor meanwhile died leaving behind Ram Lochan appellant as his heir and legal representative. The suit giving rise to the present appeal was filed by Ram Lochan for declaration that he was the Bhumidhar in possession of the plots in dispute and prior to him his father was the Bhumidhar in possession of the plots in dispute till his death, and, in the alternative, for possession In case he (Ram Lochan) was found to be out of possession. He alleged that defendant No. 1 (Ram Naresh) got the suit land sold in execution of the money decree of the Small Cause Court, though such a decree could not have been executed by attachment and sale of Immovable property by the executing Court after the enforcement of U. P. Civil Laws (Reforms and Amendment) Act (XXIV of 1954). He also alleged that the judgment -debtor had absolutely no knowledge of the sale proceedings, and no notice was served on him, and the decree -holder managed to get the property in dispute sold for a paltry sum of Rs. 360 -14 -0 though it was worth Rs. 6,000. It was further alleged that the judgment -debtor, and after him the appellant, had all along been in possession of the suit property in spite of the auction sale and the Dakhalnama.