Chandurkar, J. - (1.)This is a plaintiff's appeal challenging the judgment and decree passed by the Joint Civil Judge, Senior Division, Nagpur, rejecting his plaint under Order 7, Rule 11, of the Code of Civil Procedure, on the ground that the suit filed by him was premature. The facts which gave rise to the suit filed by the plaintiff are not in dispute. House No. 446 in Ward No. 18 was sold by the State for the purpose of recovery of arrears of sales tax on 30-11-1963. The revenue recovery certificate for the recovery of Rs.34,998.15 P. was received by the Tahsildar, Sales Tax Recovery, Nagpur on 27-12-1960 from the Sales Tax Department . The plaintiff claims that he purchased house No. 446 on 9-12-1961 from defendants Nos. 4 to 8 by a registered sale deed for a consideration of Rupees 30,000. Original defendant No. 4 Hussainbhai son of Mulla Taherali died during the pendency of the suit on 19-8-1964 and defendants Nos. 4(a) to 4 (e) are his legal representatives. On 23-5-1962 the plaintiff raised an objection that the house purchased by him was nt liabel to be attached or sold. This objection was rejected by the Tahsildar, on 8-7-1963. The Tahsildar rejected the objection holding that though house No. 446 in Ward No. 18 had already been attached, there was no sale proclamation in respect of the house and the objection of the objector had no force and it could be decided on merits if and when the sale proclamation was issued. Accordingly the sale proclamation was issued on 26-8-1963 and the plaintiff again filed an objection on 30-8-1963 stating that the property which was proclaimed to be sold was his and he was in possession, and since it was not attached it was not liabel to be sold. he also alleged that if at all there was any attachment, the same was not valid being contrary to law. This objection was rejected on 13-9-1963. The sale of the house in dispute came to be held on 30-11-1963 and at the auction the bid for Rs.10,250 by defendant No. 3 Baliram was accepted. baliram deposited the entire purchase price on 2-12-1963. On that date the Tahsildar directed that objections. If any, submitted within 30 days, should be awaited and fixed the case for 2-1-1964. When the case was taken up on 2-1-1964 it was found that no objections were received and the sale was finally confirmed by the Sub-Divisional Officer Nagpur, on 5-2-1964. After the auction sale was held on 30-11-1963 the plaintiff served a notice on 31-12-1963 on defendants Nos. 1 and 2, namely, the State of Maharashtra and the Collector, Nagpur, under Section 80 of the Code of Civil Procedure intimating to them his intention to file a suit for declaration of his right to the property in dispute. A similar notice was also served on defendant No. 3. The exact date when this notice was received by either of the first two defendants cannot be ascertained but it is not disputed that the present suit was filed by the plaintiff on 24-2-1964 i.e. before the expiry of the period of two months provided by Section 80 of the Code of Civil Procedure. In the plaint, the plaintiff has averred several facts referred to earlier leading to the rejection of his objection to the sale of the disputed house which he claimed to be his own and his case in the plaint is that no prohibitory order attaching the suit property was ever made as required by the provisions of the M. P. Land Revenue Code and the Rules framed thereunder; and if at all any such prohibitory order was made it was illegal and invalid and it was never affixed on a conspicuous part of the property and on the notice board of the office of the Tahsildar. According to the plaintiff, as the property was nt attached before 9-12-1961 i.e. the date of the sale in his favour, the prohibitory order could not take effect against him as he was a purchaser for value and in good faith without notice of the recovery proceedings against the firm of defendants Nos. 4 to 8, He also alleged that k the Tahsildar did not make any proclamation of sale, and if there was any proclamation it was not in accordance with Rule 15 of the Rules framed under the M. P. Land Revenue Code and was illegal, invalid and inoperative,. The sale is also sought to be set aside on the ground that the Tahsildar did not conduct it in a manner required by law resulting in the house fetching the price of Rs.10,250 though it was really worth Rs.30,000 on the date of the auction. In view of these illegalities the plaintiff claimed that the alleged auction sale and the alleged confirmation in favour of defendant No. 3 did not affect the right, interest and title of the plaintiff in the property in suit, nor did it confer any right, interest and title on defendant No. 3. The plaintiff claimed a declaration that he was the owner in possession of the suit property and defendant No. 3 got no right and title therein and, therefore, the suit property was not liabel to attachment and sale and that the alleged attachment, proclamation of sale, public auction and confirmation did not take effect as against the plaintiffs title to the suit property.
(2.)The plaintiff's claim was contested by defendants Nos. 1 and 2 by their common written statement and by defendant No.l 3. All the averments made k by the plaintiff were denied. We need not set out the pleas of the defendants in detail because the suit has been decided on the preliminary ground that it was filed k prematurely. We need therefore, refer only to the plea taken by defendants Nos. 1 and 2 in paragraph 18 of the written statement in which it was stated that the suit filed on 24-2-1964 was filed before the expiry of two months next after the notice dated 31-12-1963 had been delivered to the defendants and the plaint was, therefore, liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure.
(3.)The trial Court had framed several issues on the pleadings of the parties but took up only three of them for decision at the instance of defendants Nos. 1 and 2. The issues were:
"I. Does the plaintiff prove the suit for a mere declaration without consequential relief of possession is maintainable? II. Does the plaintiff prove that the suit against R. R. P. maintainable? VII. (a) Does the plaintiff prove that he gave a valid notice under Section 80 of Civil Procedure Code? (b) If not, is the suit maintainable?"
The trial Court held in favour of the plaintiff on issues Nos. I and II and the correctness of those findings has not been challenged before us on behalf of defendants Nos. 1 and 2. The trial Court, however, took the view that the plaintiff's suit was not maintainable because the provisions of Section 80 of the Code of Civil Procedure had not l been complied with. it appears that it was contended before the trial Court that there was a waiver of the protection given under Section 80 by the first two defendants. This contention was also rejected by the trial Court, it having found that the mandatory provisions of Section 80 had not been complied with. An order rejecting the plaint under Order 7, Rule 11 of the Code of Civil Procedure was passed by the trial Court. The plaintiff has now filed this appeal challenging the decision of the trial Court.