UNION OF INDIA Vs. PARVATI KUWAR AND OTHERS,

JUDGEMENT

(1.) This a defendant's appeal arising out of a suit for declaration that the plaintiffs are the owners of the house in dispute and it was not liable to be sold in discharge of the Income-tax dues against the second defendant, Kesho Deo, as a Karta of the Joint Hindu Family Finn Gopi Krishna Kashi Prasad. It was alleged that the plaintiffs were the owners of the house in dispute and they had nothing to do with the second defendant on whom the Income-tax Officer of Azamgarh had imposed Income-tax amounting to Rupees 16682/14/- for the realisation of which a recovery certificate was issued by the Income-tax Officer, Azamgarh to the Collector Ghazipur under Section 46(2) of the Income-tax Act and the Collector of Ghazipur in pursuance of the aforesaid certificate had wrongly attached the property of the plaintiffs. They had filed an objection for the release of their property before the Collector which was heard by the Sub-divisional Officer, Ghazipur who dismissed it summarily without taking any evidence on 17-9-1961 Thereupon the Collector of Ghazipur ordered the sale of the house of the plaintiffs. It was further alleged that a notice under Section 80 C. P. C. was sent by post to the first defendant, the Union of India, the present appellant.

(2.) The suit was contested by the Union of India defendant No. 1 on the ground, inter alia, that the suit was not maintainable for want of a proper notice under Section 80 C. P. C. and that the house in dispute was the property of respondent No. 2, the defendant No. 2 in the case. The trial court found that the disputed property belonged to the plaintiffs. It however, dismissed the suit on the ground that no notice under Section 80 C. P. C. was given to the appellant On appeal the lower appellate court affirmed the finding of the trial court that no notice under Section 80 C. P. C. was given but further held that no such notice was necessary in the present case and, further, affirmed the finding of the trial court that the plaintiffs were the owners of the house in dispute.

(3.) The Union of India has now preferred the present second appeal in this Court The finding that the house in dispute is the property of the plaintiffs which has been arrived at by the courts below is a finding of fact which cannot be assailed in second appeal The further finding that notice under Section 80 of the C. P C. was (not ) sent by the plaintiffs is also a finding of fact which cannot be disturbed in second appeal. The question for consideration, however, is whether a notice under Section 80 of the Code was at all necessary in the present case. The court below found that the suit in appeal in substance is a suit under Order 21 Rule 63 of the Code and the objection preferred earlier by the plaintiffs before the sub-divisional officer was an objection under Order 21 Rule 59 which had been dismissed, and the proceedings in the present suit are in continuation of the aforesaid proceedings and consequently no notice under Section 80 of the Code was necessary. The Court below relied on a decision of the Madras High Court in Mahomed Yusuf Sahib v. Province of Madras. AIR 1943 Mad 341. Reliance was placed in the aforesaid case on a decision of the Judicial Committee in Rajah of Ramnad v. Subramaniam Chettiar, ILR 52 Mad 465: (AIR 1928 Mad 1201) It was observed as follows:-