MAHAVIR CHAND Vs. BUDHMAL

JUDGEMENT

(1.) THIS is a second appeal by the decree-holder-defendants against the appellate judgment and decree of the Civil and Additional Sessions Judge, Jalore, dated 5-51961 affirming the decree of Munsif, Jalore, dated 30-3-1960, decreeing the suit of the plaintiff-respondents nos. 1 to 8 under Order 21 Rule 63, Civil Procedure code.

(2.) THE decree-holder-appellants obtained a money decree against the defendant-respondent No. 9 and in execution of that decree they obtained an attachment of the suit house situate in the town of Ahore. The plaintiff-respondents Nos. 1 to 8 preferred an objection under Order 21 Rule 58. Civil Procedure Code, on the ground that they were owners of the suit house and that Magga had nothing to do with it. This objection was dismissed by the execution court on 30th September, 1964. Thereupon, the plaintiff-respondents filed a suit in accordance with Order 21 rule 63, Civil Procedure Code, on 22-12-54 in the court of Civil Judge, Jalore which was subsequently transferred to the court of Munsif, Jalore, on 4-5-1955. The plaintiff-respondents' case was that they had purchased the suit house at a public auction from Thikana Ahore for a sum of Rs. 751 and thereafter they had obtained a patta from the Thikana Ahore on 19-4-1950 The plaintiffs also contended that the house was leased out to Magga who was the tenant and had no proprietary right or interest in it. They accordingly claimed a declaration against the defendants to the effect that the house belonged to them and that magga had no right or interest in it. They also prayed for an injunction restraining the decree-holder-defendants from proceeding with the execution proceedings in respect of the suit property. In the suit they impleaded both decree-holders and the judgment-debtor as the defendants.

(3.) ALL the defendants resisted the suit. They contended that the plaintiffs were not the owners of the suit house and their contention that they had purchased the same from Thikana Ahore for a sum of Rs. 751 was wrong. They also contended that the Thikana Ahore had no right to auction the suit house nor to give a patta with respect to it and further that the patta produced by the plaintiffs being unregistered was not admissible in evidence. The defendants also contended that the plaintiffs could not acquire title with respect to the suit house as the sale of immovable property was not in accordance with Section 54 of the Transfer of Property Act, and that after the Constitution had come into force the Thikana could not have sold immovable properly to anyone merely by means of a patta, and that if there was any such law or custom which permitted the Thikana to do so, then it was void being in contravention of Articles 13 and 14 of the Constitution. They pleaded that the house in question belonged to the judgment-debtor Magga and he was in possession.