SHAHJAHAN IQBAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant has preferred the present appeal against the judgment and decree dated 5.2.2007 passed by the learned 11th Additional District Judge, Bhopal in civil suit No.453-A/2006, whereby the suit for declaration and injunction filed by the appellant relating to a land plot No.39, area 38 X 68 square feet situated at Punjab Bank Colony, Idgah Hills, Bhopal was dismissed.

(2.) THE appellant has preferred a suit before the District Court, Bhopal that a plot No.39 of Punjab Bank Colony, Idgah Hills, Bhopal having area 38 X 68 square feet was purchased by her on 7.5.1973 by a registered sale deed from Smt.Nahid Jahan Begum. The plaintiff was a partner in M/s International Auto Filters, Sehore, whereas Shri Zahir Hasan Qureshi, the defendant No.6/respondent No.6 was second partner in that firm. Due to dispute between the partners that partnership was dissolved on 31.8.1982. A civil suit relating to dissolution of partnership was also pending before the District Court. The High Court vide order dated 12.4.1984 directed to appoint a receiver on the property of the partnership firm. The respondents were the officers of Sales Tax Department and for recovery of tax of Rs.75,000/-, the plot in question was attached by Sales Tax Officer and Additional Tahsildar on 18.1.1983. Thereafter, the Deputy Commissioner, Sales Tax vide order dated 19.4.1983 directed the Sales Tax Officer not to auction the plot but, to have a negotiation with the plaintiff for the remaining sales tax. Thereafter, on 4.6.1987, a demand notice of Rs.97,838/- as well as attachment notice was issued to the plaintiff and it was shown that both the notices were served by affixing them. Notices were affixed on 6.6.1987 and 3 days time was given for payment in demand notice. However, on 6.6.1987, the respondent officer had also issued an auction notice that the plot would be auctioned on 10.7.1987. Thereafter, auction was adjourned for 13.8.1987. On that day, the plot was auctioned in the name of one Ishteyaq Ali. The respondent No.5 is wife of the purchaser Ishteyaq Ali. Due to death of Ishteyaq Ali, the certificate of sale was duly registered before the Registrar, Deeds and Documents on 1.3.1988. Auction was illegal and without adopting the appropriate procedure therefore, the plaintiff wrote various letters to the higher authorities and also filed an appeal before Regional Sales Tax Commissioner but, it was dismissed and therefore, the plaintiff prosecuted a suit for declaration of her title on the property and to get a perpetual injunction that no interference may be done in her possession. She also sought for compensation for that proceeding.

(3.) THE defendant No.5 in the written statement denied the claims of the plaint and it was pleaded that the defendant No.5 was in possession of the land and civil Court has no right to entertain the suit. No declaratory decree can be given in absence of possession. Therefore, it was prayed that the suit may be dismissed.