R.B.Misra, J. - (1.) I have had the ad vantage of reading the judgment prepared by my brother Sinha, J. With all respects, however, I find myself unable to concur with the view taken by my learned Brother.
(2.) THE present Special Appeal came up for hearing before a Division Bench, As on one of the points involved in the case there was conflict of judicial opinion, ths Division Bench referred the case to a larger Bench. This is how this appeal came up before this Bench. In order to appreciate the points Involved in this case a few facts would be necessary. Matadin, the father of Ram Lochan appellant, was a fixed rate tenant of the plots in dispute. One Ram Naresh obtained a money decree against Matadin from the Court of Judge, Small Causes In the year 1953. He sought to execute the decree by attachment and sale of the im movable property of the judgment- debtor. As under the rules the Small Cause Court had no jurisdiction to execute the decree by attachment and sale of immoveable property, the decree-holder applied for the transfer of the decree to the Court oJ Munsif, Varanasi, for execution. The transferee Court ordered execution by sale of the plots in dispute and transferred the decree for auction sale to the Collector. Accordingly the plots in question were put to auction sale and were purchased by the decree-holder himself on 20th July, 1956. The sale was confirmed on 29th August, 1956 and sale certificate was issued on 8th September, 1956. The Dakhalnama on the record indicates that the decree-holder obtained possession on 14th March, 1957. He got his name re corded in the reyenue papers also on the basis of the auction sale. On 4th March, 1960, the decree-holder-auction-purchaser sold the said plots to respondents Nos. 2 to 6. The judgment-debtor meanwhile died leaving behind Ram Lochan appel lant as his heir and legal representative. The suit giving rise to the present appeal was filed by Ram Lochan for declaration that he was the Bhumidhar in possession of the plots in dispute and prior to him his father was the Bhumidhar in posses sion of the plots in dispute till his death and, in the alternative, for possession In case he (Ram Lochan) was found to be out of-possession. He alleged that defen dant No. 1 (Ram Naresh) got the suit land sold in execution of the money decree oi the Small Cause Court, though such a 'decree could not have been executed by attachment and sale of immoveable pro perty by the executing Court after the enforcement of U. P. Civil Laws (Re forms and Amendment) Act (XXIV of 1954). He also alleged that the judgment-debtor had absolutely no knowledge of the sale proceedings and no notice was served on him and the decree-holder managed to get the property in dispute sold for a paltry sum of Rs. 360-14-0 though it was worth Rs. 6, 000. It was further alleged that the judgment-debtor and after him the appellant, had all along been in possession of the suit property in spite of the auction sale and tha Dakhalnarna.
(3.) THE claim was resisted by the respondents on grounds, inter alia, that the suit was barred by Section 47, Civil P. C., barred, by time, barred by res judicata, estoppel and acquiescence, that the Revenue Court had no jurisdiction to try the suit, that the Plaintiff was not a Bhumidhar nor in possession and that respondents Nos. 2 to 6, being the trans ferees for value in good faith without notice, were entitled to the protection of Sections 41 and 51 of the Transfer of Pro perty Act.;