DINA NATH SINGH Vs. PARAS NATH MISHRA

JUDGEMENT

(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/- a property worth of Rs. 86,000/- 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 before the 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 respondent also placed on record certain dates of events. On 20-5-68 loan was advanced and suit land stood mortgaged by Jainath Pathak as a security for the loan. Purchaser Parasnath was subject to the mortgage as purchaser was made in 1973 and 1982. Recovery certificate was issued to the Collector by the Bank before 20-8-85 the Collector attached the land in dispute of Jainath Pathak. ,on 20-8-85 the objection was filed against such attachment. Sale proclamation was issued on 3-4-89, fixing 3-5-89 for sale of the property of Jainath for recovery of Rs. 20,000/towards electricity dues and bank loan with interest but the recovery certificate was issued and the land was attached when the Bank Manager was not entitled to receive any amount towards the bank loan. Recovery certificate was not only for the bank loan but electricity dues also and payment to bank could not have absolved Jainath. On 3-5-89 the sale was conducted and declared in favour of the highest bidder Dinanath Singh for Rs. 86,000/ -. THE sale became absolute after the prescribed period from the date of sale. On 27-589, for the first time, Parasnath, the plaintiff, filed an application before the S. D. O. THE S. D. O. had no jurisdiction to entertain any such application on 27-5-89 as the auction sale was held on 3-5-89. THE required period of 30 days expired on 3-6-89. No deposit was made by Jainath Pathak or even by Parasnath as required under the law and the sale became absolute. On 13-6-89 the S. D. O. rejected the application of Parasnath and confirmed the sale. On 14-6-89 a time barred objection was filed by Parasnath before the Commissioner. No stay order was granted. Parasnath then filed a writ petition and obtained a stay order by concealment of material facts. On 5-7-95 a letter was issued by the electricity department certifying no dues from Jainath. THE photo copy was proved in Court without proper proof thereof.