SUKHDEV KUMAR Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) THE plaintiff is in second appeal against the judgment and decree of the trial Court passed by Additional Civil Judge (Sr. Divn.) Balachaur dated 6.12.2006 which has been upheld by the first Appellate Court vide its judgment and decree passed by the Additional District, Judge, Nawan Shahar dated 1.8.2008.

(2.) BRIEFLY put, case of the plaintiff is that on 27.10.1999 his land measuring 2 kanals comprising in Khata No. 172/204, Khasra No. 28/24/5 (2-0) situated at village Fatehpur, Tehsil Balachaur. District Nawan Shahar mortgaged with the Punjab National Bank (defendant No. 1) was auctioned by the Bank for recovery of loan amount of Rs. 1,00,165/-, in favour of Sukhdev son of Lakpat (defendant No. 3), for a sum of Rs. 94,000/- though the property was valued at Rs. 45 lacs. The auction was behind the back of the plaintiff, of the suit property, in which he is residing. It is alleged that he had set up a poultry farm on the land in question having an electricity connection bearing meter No. RB No. 1108. The defendant No. 3 moved an application to defendant No. 2 (SDM, Balachaur) for delivery of possession of suit property and also threatened the plaintiff of his dispossession, therefore, the plaintiff filed a suit for declaration that he being the owner of the suit property measuring 2 kanals, challenged the auction dated 27.10.1999 by defendant No. 1 in favour of defendant No. 3 and sought permanent injunction restraining the defendants from interfering in his peaceful possession. After the notice was issued in the suit, vide order dated 3.8.2005, suit against defendant No. 2 was got dismissed as withdrawn. However, the suit was contested by both defendants No. 1 and 3 by filing their separate written statements. Besides taking the technical objections in the preliminary objections, on merits, both defendants No. 1 and 3 almost took similar objections to the effect that the plaintiff had taken loan from defendant No. 1 for the purpose of running a poultry farm over the suit land by mortgaging the land in question with defendant No. 1. As the plaintiff failed to make the payment of loan along with interest, the land mortgaged with the Bank was auctioned by defendant No. 2 under the Punjab Agricultural Credit Operations and Miscellaneous Provisions (Banks) Act, 1978 (for short 'the Act'). The Bank ordered the auction on

(3.) TO substantiate his case, the plaintiff examined himself as P.W. 1 and tendered into evidence some documents whereas contesting defendant did not lead any evidence. The learned trial Court decided issues No. 1 to 3 against the plaintiff whereas issues No. 4, 5, 6, 7 and 8 were not pressed. Both the Courts below have concurrently found that the plaintiff had obtained a loan of Rs. 33,000/- from defendant No. 1 for the purpose of constructing poultry farm over the land measuring 2 Kanals which was mortgaged with the Bank. Defendant No. 1 filed a recovery certificate of Rs. 1,00,165/- against which the plaintiff had deposited Rs. 20,000/- but a sum of Rs. 91,210/- remained due which was not deposited because of which the auction of the property was conducted on 27.10.1999 in which defendant No. 3 was the highest bidder and after realising the amount due to the Bank out of the auction proceeds, the balance amount of Rs. 2790/- was returned to the plaintiff by way of cheque which has been encashed by him without any objection. Both the Courts have also found that the plaintiff had filed Objection against the auction to defendant No. 2 which was dismissed by him against which he had filed an appeal which was dismissed by the Deputy Commissioner, Nawan Shahar and no further appeal was filed as a result of which those orders became final, between the parties. On these concurrent findings of fact, both the Courts have dismissed the suit of the plaintiff.