SMT. SURINDER KAUR Vs. MANJIT SINGH AND OTHERS

JUDGEMENT

(1.) Both these Regular Second Appeals are being decided by a common judgment as these appeals arise out of the judgment passed by the Court of learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 58-CA/13 of 2003 dated 03.06.2004.

(2.) Brief facts necessary for adjudication of the present appeals are that a suit was filed by the plaintiffs (appellants in RSA No. 397 of 2004) against the defendants (appellants in RSA No. 396 of 2004) for declaration to the effect that the plaintiffs were owners in possession of the land bearing khata khatauni No. 48/78, khasra No. 7, measuring 8 bighas 19 biswas and khasra No. 258/106 measuring 2 bighas 15 biswa situated in mouja Bherewala, Tehsil Paonta Sahib, Distt. Sirmaur (HP) and the auction of the suit land dated 31.12.1987 in the execution petition No. 6/10 of 87 and the sale certificate on the basis of said sale in favour of defendant No. 1 of the suit land is illegal and void and not binding on the rights of the plaintiffs and the mutation No. 638 dated 19.12.1992 attested in favour of defendant No. 1 on the basis of aforesaid sale certificate was also illegal and void and the defendant No. 1 had no right, title or interest in the suit, with consequential relief of permanent injunction restraining the defendant No. 1 from interfering in the possession of the plaintiffs over the suit land herself, through her servants or agents in any manner with costs of the suit, be passed in favour of the plaintiffs and against the defendants. As per the plaintiffs, their father Narain Singth was owner in possession of the suit land and plaintiffs received a letter dated 01.12.1990 from defendant No. 2 from which they came to know that their father had taken a loan from defendant No. 2 Bank. For recovery of loan, defendant No. 2 filed recovery suit No. 93/1 of 1979 and obtained an ex parte decree on 12.01.1982. Narain Singh died on 02.02.1983. Defendant No. 2 filed execution petition No. 43/10 of 1984/6/10 of 1987 titled SBI Vs. Narain Singh etc. , in which plaintiffs were not served nor they came to know about the pendency of the said execution petition. As per plaintiffs, defendant No. 1 was wife of plaintiff No. 2 and was residing with her brother Shri S.S. Gill, Advocate, because of strained relations between husband and wife. It was further the case of the plaintiffs that Shri S.S. Gill and defendant No. 1 in connivance with defendant No. 2 obtained an ex parte decree against late Narain Singh and in order to transfer the suit land in the name of defendant No. 1 in connivance with the Bailiff of the Court, secretly showed public auction of the suit land in favour of defendant No. 1, whereas no such auction in fact took place on 31.12.1987 nor any person participated in the same. Further, as per the plaintiffs, defendant No. 1 did not deposit 25% of auction amount/purchase money with the Bailiff, who conducted the auction immediately after declaring her the purchaser which was mandatory under the provisions of Order 21, Rule 84 C.P.C. On these basis, it was contended by the plaintiffs that the auction sale in favour of defendant No. 1 was null and void. It was further the case of the plaintiffs that the sale in favour of defendant No. 1 of the suit land was collusive, fraudulent, illegal and not binding on the rights of the plaintiffs. As per plaintiffs execution petition No. 6/10 of 1987 came for hearing before the Court of learned Sub Judge, Paonta Sahib on 08.01.1988 on which date the said Court dismissed the execution petition as fully satisfied but did not confirm the sale dated 31.12.1987. Learned Court thereafter issued sale certificate in favour of defendant No. 1 without confirming the same which was illegal. It was also the case of the plaintiffs that said certificate did not confer any title upon defendant No. 1 and she had no right, title or interest over the suit land and mutation No. 638 dated 19.12.1992 attested on the basis of said sale certificate in favour of defendant No. 1 was illegal and void and not binding on the rights of the plaintiffs. On these basis, suit was filed by the plaintiffs.

(3.) The suit so filed by the plaintiffs was contested by defendant No. 1, inter alia, on the ground that the suit was not maintainable in view of the provisions of Order 21, Rule 90 C.P.C. and the filing of the suit was specifically barred under the provisions of Order 21, Rule 92 (3) of C.P.C.