Sen, J. -
(1.)THIS is an appeal by the plaintiff who brought a suit for the recovery of a piece of land alleging that he became the owner of the eastern part of the said land under a Court auction held in March 1939 and that he purchased the western part of it by a private sale in May 1939, the original owner being one Punju Totaram. As according to him he obtained possession of the whole land and was dispossessed thereafter by the defendant, he brought the present suit. The defendant's case was that Punju Totaram had already parted with his title in his favour by a sale in 1936 and alternatively that both the sales relied on by the plaintiff were bogus and collusive. The trial Court found that the plaintiff had not proved his title nor his possession and dispossession by the defendant within 12 years prior to the suit and, therefore, dismissed the suit. On appeal by the plaintiff to the District Court, the appellant relied on a new ground, namely, that the plea of the defendant as regards the eastern part of the suit property that he had title and possession was barred under Order XXI, Rule 63, as during the execution proceedings leading to the Court auction the defendant had raised this very plea, and as he did not pay process fee thereafter, the Court had ordered, "process not paid. Struck off. No order as to costs. " Thereafter the execution went on and the sale was completed, a sale certificate being given to the plaintiff in 1939. The lower appellate Court found that Punju had sold the suit land to the defendant prior to the auction sale and that the auction sale as well as the private sale in favour of the plaintiff were collusive transactions. As to the argument based on Order XXI, Rule 63, it held that the defendant was not precluded from setting up his claim with respect to the eastern part of the suit property. Accordingly, it confirmed the lower Court's decree and dismissed the appeal. In the present appeal by the plaintiff, the orders of the lower Court with regard to the western half of the suit property are not challenged, but it is only in so far as the decree relates to the eastern part of the said property that this appeal has been argued. It is contended on behalf of the appellant that the order "struck off" made on exhibit 45, the claim petition of the defendant, amounts to a dismissal of the application and that, therefore, that order became conclusive or final, so that the defendant cannot in the present suit rely on the claim put forward in the execution proceedings. It seems to me, as held in Cannanore Bank, Ltd. v. Pattarkandy Arayanveettil Madhavi  Mad. 336, that where the claim petition was not pressed and there was an order of dismissal, even if there is no investigation of the claim petition, an adverse order against a claimant is conclusive unless a suit is brought by him to establish his claim within a year of the said order, and that unless such a suit is brought, the party against whom the order is made cannot assert, either as plaintiff or as defendant in any other suit or as a party to any other proceedings, the right denied to him by the order see Nemagauda v. Paresha (1897) I. L. R. 22 Bom. 640 and Trimbak Tumbdu v. Siparu Chaturdas (1932) I. L. R. 57 Bom. 213, s. c. 35 Bom. L. R. 147. Mr. Gupte, however, has contended that the order "struck off" does not amount to an order of dismissal, as it was competent to his client to bring a similar application again and pay the necessary process fee on the analogy of Order IX, Rules 2 and 4.But this argument overlooks the fact that such an application can only be made after the order passed for default has been set aside. In the present case no attempt was made to get the order passed set aside and there can be no doubt that if it is an order under Rule 63 it has now become conclusive. Mr. Gupte has relied also on Maruti v. Ramchandra (1930) 33 Bom. L. R. 396, where the Court made an order that the claim application need not be proceeded with and it was held that that was not an order adverse to the claimant. He has contended that the order "struck off" should be interpreted to mean either that the claim was not pressed or that the Court declined to pass any order on the application. I do not think that this contention can be sustained, because the order was made on account of default of the defendant and must be taken to mean the dismissal of the application and hence an order made under Rule 63 of Order XXI.
(2.)THE next question that arises is whether in this case the defendant can he said to have asserted the right denied to him by the order, and if not, whether there is any bar against him due to the operation of Order XXI, Rule 63.This is a suit based on an alleged title and the plaintiff has treated the defendant as a trespasser. If the defendant is not allowed to assert or prove the right he claims in the claim petition, he would, no doubt, be in the position of a trespasser; but the trespasser can undoubtedly put the plaintiff to the proof of his title where he is in possession, and this is exactly what the defendant has done in his alternative case, alleging that the auction sale on which the plaintiff has relied was a bogus or a collusive transaction. THE lower appellate Court, after raising an issue as to the collusive nature of the auction sale as well as the private sale in favour of the plaintiff, came to a negative finding and that on the face of it is a finding of fact. Exhibit 45, the claim petition made by the defendant, is a part of the evidence relating to this issue on the examination of which as well as of the other evidence the lower appellate Court has come to a negative finding. It does not appear to me that exhibit 45 could have been prevented from being produced or admitted into the evidence nor could its consideration, as a piece of evidence on the point of the plaintiff's title, be said to be barred owing to the operation of Order XXI, Rule 68.It can, therefore, be said that the defendant, without asserting any title at all, has succeeded in getting a finding as to the bogus nature of the auction sale relied on by the plaintiff, and that I think he was entitled to do. THE finding of the lower appellate Court on this question cannot, therefore, be interfered with by this. Court in second appeal. THE appeal, therefore, fails and is dismissed with costs. .