- (1.) THIS appeal, preferred under Sec tion 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 16-07-2002, passed by learned District Judge, Uttarkashi, in Civil Suit No. 51 of 1998.
(2.) BRIEF facts of the case, are that plaintiff-respondent, Kedar Singh Rawat instituted a suit before the trial court on 24-11-1998 for declaration that he is owner of the plot No. 2097 and injunction directing the appellants-defendants to deliver the possession of the land in suit, after executing deed in respect thereof as a freehold land. According to the allegations contained in the plaint, the State (appellant) issued a memorandum/notice for holding pub lic auction on 28-02-1998 in respect of certain properties which included plot No. 2097, measuring 10 sq mts. , in the town area of Uttarkashi. The plaintiff has alleged in the plaint that he author ized Sri Prakash Butola, as his agent, to participate in the auction on his be half. The bid o; the plaintiff-respondent at Rs. 76,000/-, being highest was ac cepted in respect of aforesaid plot. Ac cording to the terms of the auction, one-fourth of the said amount was im mediately deposited and rest three-fourth amount was deposited in terms of the auction on 03-04-1998 in the Government treasury. As per the terms of the auction the bid of the plaintiff-respondent was accepted by the Collec tor and the defendants-appellants were bound to transfer possession of dis puted land ai a freehold land to the plaintiff-respondent. However, on 24-10-1998, the District Magistrate/collec tor, Uttarkashi cancelled the auction on the ground that on enquiry it was found that said land of plot No. 2097 was in the possession of Agriculture Depart ment. Vide its said order, the Collector further directed that the money depos ited on behalf of the plaintiff, be re funded to him. It is this order which gave cause of action to the plaintiff, who instituted a suit for declaration, of his right and for injunction directing the defendants to deliver possession of the plot in question. Defendants-appellants filed their written statement before the trial court admitting that on 28-02- 1998 auction took place and in respect of plot No. 2097, measuring 10 sq. mts. , and that Prakash Butola made a highest bid. It is also admitted that one-fourth of the amount of bid, that is Rs. 76,000/4 = Rs. 19,000/-, were deposited then and there at the time of the auction. It is also not disputed, rather admitted, that remaining amount was also deposited on behalf of the plaintiff in terms of the auction. However, the suit was con tested on the ground that the land is in Missing 756 offer was made by the plaintiff-re spondent, who was the highest bidder, and deposited in terms of auction one-fourth amount on the very day and remaining \three-fourth within the time allowed as per the terms of the auction. It is clear from the evidence on record that remaining three-fourth amount was deposited on 03-04-1998 in the Gov ernment treasury through the treasury challan. As such after plaintiff's offer which was accepted by defendants, the contract was complete. The impugned order of the Collector passed on 24-10-1998 shows that the sale by auction is being cancelled because there is pos session of the Agriculture Department over the plot of land and the land is of public utility. Every inch of the land be longing to the State is held or pos sessed by some of its department. Ag riculture Department is not exception to it. As such, on such a ground unless the law empowers the Collector to do so, he cannot cancel the sale in the man ner it is done. Therefore, this Court is again in full agreement with the trial court on its finding on issue No. 1. 9. Learned Standing Counsel drew attention of this Court to the memoran dum/notice issued on 1st February, 1998 for holding the sale by auction on 28-02-1998. Said notice is Ext. 1, pa per No. 28-A filed before the trial court. At the end of this notice, it has been mentioned that right to accept or not to accept the highest bid vests in the Com mittee chaired by the Collector. Learned Standing Counsel relying on said provision in the notice argued that the Collector was empowered to can cel the sale by auction. In the opinion of this Court, the submission of learned Standing Counsel is misconceived, for the reason that paper No. 30-A, which is the memo of the auction shows that after the auction was over, it was signed not only by the members of the auction Committee but also by the Collector himself. The said memo of auction dis closes that the members of the Commit tee recommended that the highest bid of Rs. 76,000/- be accepted. The mem bers of Committee included Executive Officer, Nagar Palika, Assistant Engi neer, Public Works Department, Chief Development! Officer, Incharge Collec tor and on their recommendation bid was accepted by the Collector himself. As such, the acceptance of bid for the sale by auction in favour of the plain tiff was already over, that is why by the impugned order dated 24- 10-1998, the sale by auction was cancelled there is no mention that the offer is not being accepted. Otherwise also, it is only af ter the bid was accepted, the plaintiff deposited three-fourth of the amount of bid on 03-04-1998 in terms of the auc tion. 10. In view of the aforesaid discus sion and after perusing the entire evi dence on record, this Court feels that the appeal has no force and is liable to be dismissed. However, the plaintiff-re spondent appears to have paid court fee only in respect of declaration and injunction while he has also sought possession of plot under the garb of the mandatory injunction. In the circum stances, the decree passed by the learned trial court would be executed for possession of land, only if the plain tiff-respondent pays the court fee for the relief of possession also. With these observations the appeal is dismissed. However, costs of appeal easy. .;