CHANDRAWATI SURJANRAM Vs. GANESH PRASAD LAKSHMI PRASAD

JUDGEMENT

(1.) This is plaintiffs (since dead) second appeal under Section 100, Civil Procedure Code. He died during the pendency of the appeal and this appeal is being pursued by his legal representatives. Plaintiff filed the suit for recovery of possession of agricultural land having an area of 10.24 acres situated in village Soor in the district of Sarguja from defendants 1, 2 and 6. He further prayed for the relief of mesne profits at the rate of Rs. 500/- per year from the defendants excepting defendant No 7. Further relief sought for by him was that the auction sale held by defendant No. 4 of 14.5.1976 in relation to survey plot nos. 554,555,557 and 2528 be declared null and void. Second Civil Judge, Class II Ambikapur (Sarguja) by judgment and decree dated 27.12.1983 passed in Civil Suit No. 88-A/70 decreed the suit. Defendants 1, 2 and 6 being aggrieved by the same preferred appeal and the Second Additional District Judge, Ambikapur (Sarguja) by Judgment and decree dated 28.4.1988 passed in Civil Appeal No. 44-A of 1986 allowed the appeal and dismissed the plaintiffs suit. Plaintiff being aggrieved by the same has preferred this appeal. By order dated 27.2.1989 appeal has been admitted on the following substantial questions of law :

(2.) It is admitted position that in the financial year 1965-667 plaintiff obtained loan of Rs. 1.500 /- from Aadim Jati Sewa Sahakari Samiti, Chalta (hereinafter referred to as the Society). On a dispute being raised award was handed over against the plaintiff on 30. 10. 1972, for an amount of Rs. 2,638 /-, which included Rs. 1. 500/- as the principal sum and Rs. 1.138 /- as interest. For non payment of the aforesaid amount, on 18.2.1976 auction proclamation was issued and auction sale took place on 22. 3. 1976. Defendant No. 1 Ganesh Prasad is the auction purchaser. On 14.5.1976 auction sale was confirmed and in July 1976 sale certificate was issued and auction purchaser got possession of the land. Plaintiff filed the suit on 9.5.1979. Plaintiff challenged the sale before the Registrar, Co-operative Society and matter went up to the Board of Revenue but he did not succeed. Possession of the defendants 1,2 and 6 over survey plot Nos. 554, 555,557 and 2528 is also admitted. Plaintiff filed the suit on 9.5.1979 seeking reliefs inter alia for declaration that the auction be declared void ab-initio, for recovery of possession, injunction and mesne profits.

(3.) According to the plaintiff, he belongs to an aboriginal tribe and in the capacity of scheduled tribe he contested twice the election for the Loksabha from a seat reserved for the members of the Scheduled tribe. According to the plaintiff in the year 1965, he took a loan of Rs. l,500/-from the society which merged with another society, defendant No. 3. On account of non payment of loan, award against him was handed over and on 28. 2. 1976 sale proclamation was issued and on 22. 3. 1976 without the knowledge of the plaintiff, property was auction sold for a sum of Rs. 4. 600/-. According to the plaintiff on 14. 5. 1996 defendant No. 4 issued sale certificate in favour of defendant No. 1. Plaintiffs case further is that defendant No. 2 and defendant No. 6 with the help of Sitapur Police took possession of the suit land including plot nos. 541, 542 and 2276 which were not auction sold. According to the plaintiff in view of the Madhya Pradesh Ordinance No. 22 of 1975, which inter alia amended the provisions of the Maclhya Pradesh Co-operative Societies Act and which came into force on 3. 12. 1975, property of an aboriginal tribe cannot be sold to a non aboriginal tribe and hence the sale is void ab-initio. According to the plaintiff after giving notice to the defendants, he has filed the suit.