LACHMI KANT DEO PRASAD SINGH Vs. RAMESHWAR CHAUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for setting aside a certificate sale under the Public Demands Recovery Act and for recovery of possession. The property affected by the suit is Touzi No. 16396 With an area of 22 bighas which was sold for a sum of Rs. 85. The sale was held on 28 March 1940 for arrears of cess for which a certificate is purported to have been filed under Section 4 of the Act (Bihar and Orissa Act 4 [IV] of 1914). The plaintiff had made certain allegations against the purchaser by way of impugning his purchase as a farzi transaction for the benefit of defendants third party. Defendants second party were some of the cosharers of the plaintiff. The certificate is purported to have been filed against some of the recorded proprietor's but not all.

(2.) Matters that were specifically pat in issue were, (1) whether there was service of notice in accordance with Section 7 of the Act, (2) whether the suit was barred by the provisions of Section 43 of the Act and (3) whether the suit was bad for non-joinder of the Province of Bihar the certificate-holder. There was an issue also as to if the" sale was fraudulent and collusive Defendant l pleaded that the certificate proceedings were not defective in any way and there was due service of notice as prescribed by Section 7 of the Act, and "the sale was perfectly valid.

(3.) The trial Court held that the Government of Bihar was a necessary party and therefore there was defect in the frame of-the suit. With regard to the service of notice under, Section 7 of the Act he came to a finding that the notice had in fact been served. He, however, decreed the plaintiff's suit holding that the entire proceedings were without jurisdiction; inasmuch as; some of the certificate- debtors having been found dead at the time of service of notice under Section 7, a fresh notice under Section 7 was required to be issued and as the same was never issued, the sale and other proceedings following were without jurisdiction. He summarised his findings in these words: In my opinion, therefore, when the sale had been found to be void ab initio, the suit cannot fail because a necessary party hag not been joined.