PRABHUDAS BACHHUBHAI BABARIA Vs. SULBHA

JUDGEMENT

(1.) This second appeal has been preferred by original defendant Nos. 1 and 4 against the order passed by the 4th Additional district Judge, Akola dismissing Regular Civil Appeal No. 334 of 1984 against the judgment and decree passed by the Joint Civil Judge, Junior Division, Akola in Regular Civil Suit No. 28 of 1982 declaring that the auction held by the revenue authorities was void, it does not bind the plaintiffs and directing the defendants therein to deliver possession of the suit plot to plaintiff No. 1.

(2.) In order to appreciate the controversy it is necessary to state a few facts : an open plot bearing No. 35 in survey No. 13/1 of Umari-Umarkhed, tahsil and District - Akola, admeasuring 5000 sq. ft. was owned by respondent no. 3 (hereinafter referred to as defendant No. 2). Respondent No. 2 (hereinafter referred to as plaintiff No. 2) purchased the said plot from defendant No. 2 by registered sale deed dated 17-7-1967 for a consideration of Rs. 5,000/- and plaintiff No. 2 was placed in possession thereof. On 9-11-1973 the said plot was auctioned by the revenue authorities for Rs. 1,350/- for recovery of arrears of ground Rent of Rs. 420/- for the period from 1967-68 to 1972-73. The said plot was purchased by appellant No. 1 (hereinafter referred to as defendant No. 1). A sale certificate was also issued in his favour by the revenue authorities and possession was delivered to him. Plaintiff No. 1 purchased the said plot from plaintiff No. 2 by registered sale deed dated 14-5-1976 for Rs. 4,000/ -. It appears that defendant No. 1 (the auction purchaser) sold the said plot to defendant No. 4. On 15-1-1982 plaintiff No. 1 instituted Regular Civil Suit No. 28 of 1982 for a declaration that the auction sale dated 9-11-1973 was void ab initio and was not binding on her; defendant Nos. 1 and 4 do not get any right, title and interest in the said plot and for possession of the said plot on the ground that no notice of the auction sale was ever given to her or to plaintiff No. 2 (who was initially joined as defendant No. 3 but was subsequently transposed as plaintiff No. 2) and that defendant No. 2 (the original plot-owner) played a fraud by misleading the revenue authorities that it had sold the plot to one C. R. Jaiswal. The suit was contested by respondent No. 1. According to respondent No. 1 the revenue authorities were necessary party to the suit and in their absence the suit was liable to be dismissed for non-joinder of necessary party. It was also contended by defendant No. 1 that the Civil Court has no jurisdiction to entertain the suit because the appeal preferred by plaintiff No. 1 was dismissed by the revenue authorities.

(3.) After considering the oral and documentary evidence adduced by the parties, the trial Court held that defendant No. 2 played a fraud on the plaintiff and revenue authorities by moving the revenue authorities to put the plot to auction. The trial Court further held that the auction held by the revenue authorities was void ab initio; that State Government was not necessary party to the suit and that the Civil Court has jurisdiction to entertain the suit and to grant relief. The trial Court decreed the suit in favour of the plaintiffs. The Appellate court confirmed the judgment and decree passed by the trial Court. Hence this appeal.