SYED GURFAN Vs. REKHA RAMDAS PANDE
HIGH COURT OF BOMBAY
Rekha Ramdas Pande
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(1.) Since both these appeals raise a challenge to the judgment of the Appellate Court dated 06/01/2003, they are being decided by this common judgment. The appellant is the original defendant No.3 against whom the trial Court has passed a decree declaring that the respondent No.1 plaintiff was the owner of the suit property and that the auction sale in favour of the appellant had no legal effect.
(2.) The facts in brief are that one Shri Kapurchand Sancheti was the owner of Survey No.516/1. He prepared a layout and one plot therefrom was purchased by Shri Shankarrao Takarkhede on 21/11/1978. Said Shri Takarkhede subdivided the plots and the plaintiff purchased area admeasuring 3605 sq. ft. on 25/06/1987. According to the plaintiff he had put a fencing on the plot purchased and he was residing away from the suit property due to his service. The plaintiff learnt that the fencing of the plot has been removed and hence on making enquiry, it was revealed that in proceedings for recovery of land revenue, the portion of the suit property to the extent of 1855 sq. ft was sold in an auction and it was purchased by defendant No.3. This auction took place on 29/03/1992. According to the plaintiff, the prescribed procedure under the Maharashtra Land Revenue Code, 1956 (for short, the Code) while conducting the auction was not followed. No notice demanding arrears was ever served on the plaintiff. On that count he filed the aforesaid suit for a declaration that he was the owner of the suit property and that the auction sale held on 29/03/1992 and all other subsequent proceedings therein were bad in law. A prayer for possession also came to be made. The defendant Nos.1 and 2 filed their written statement at Exhibit 51 and pleaded that the suit was not maintainable as the plaintiff had failed to avail remedy available under the provisions of the Code. It was pleaded that the auction was validly held. In the written statement filed by defendant No.3 at Exhibit 23 a similar stand was taken that the suit was not maintainable in view of the fact that the civil Court had no jurisdiction to consider the correctness and validity of the proceedings held under the Code. It was pleaded that the suit property had been purchased for Rs. 41,000/and in view of the sanad issued on 07/06/1993, the defendant's title had become absolute.
(3.) After the parties led evidence, the trial Court decreed the suit and held the plaintiff to be the owner of the suit property. The auction sale was held to be invalid on the count that the plaintiff was not in arrears of land revenue. Accordingly the defendant No.3 was directed to restore possession of the suit property. Three appeals came to be filed. While the plaintiff was aggrieved by the direction issued by the trial Court to pay the amount of Rs. 41,000/to defendant No.3 along with interest and thus filed an appeal, the defendant No.3 challenged the entire decree by filing another appeal. Defendant Nos.1 and 2 also filed an appeal challenging the judgment of the trial Court. The Appellate Court by the impugned judgment dated 06/01/2003 dismissed the appeals filed by the defendants and allowed the appeal filed by the plaintiff. The suit as filed was decreed in its entirety. Being aggrieved, the defendant No.3 has preferred the aforesaid second appeals.;
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