- (1.) THIS second appeal is directed against the judgment and decree dated 4-11-96 passed by the District Judge, Ballia, in Civil Appeal No. 21 of 1996 whereby the District Judge had confirmed the judgment and decree dated 31-5-96 recorded by the civil Judge (Senior Division), Ballia, in Suit No. 94 of 1993.
(2.) THE suit in question was filed by Paras Nath Mishra, respondent No. 1 in the present appeal. He had instituted the suit for a declaration that an action sale of the suit property dated 3-5-89 and its subsequent confirmation dated 13-6-89 and the sale certificate dated 21-5-93 were illegal and void. He made a prayer for a further declaration that the aforesaid sale had not conferred any right on the defendant. Accordingly the plaintiff prayed for an injunction so that the defendant No. 5 (present appellant) may not disturb the possession of the plaintiff on the basis of the aforesaid auction sale. It was his case that he purchased the suit property by registered sale deed from the defendant No. 5, Jainath Pathak, and was in occupation of the same as owner thereof. His name stood recorded in the revenue record for the suit properties. This Jainath Pathak had taken a loan from the U. P. State Co- operative Land Development Bank and he had paid back the dues on 26-4-89. THE bank had proceeded to recover the dues prior to 26-4-89 and the District Magistrate had issued warrant of recovery. After payment the recovery could not be made from Jainath Pathak, but on 3-5-89 the suit properties were sold in pursuance to the recovery proceedings. This auction sale was fraudulent as Jainath Pathak had already paid back the dues and his lands were not open to be auctioned. THE old plots were given in mortgage as security to the loan and the new plots could not have been sold. THE bank failed to intimate the District Magistrate that the money has been paid back and for a paltry sum of Rs. 1690/- a property worth of Rs. 86,000/- was fraudulently sold away. Sale was made only in respect of one third share in the suit property but the sale certificate was issued without any boundary of the land sold. THE plaintiff further stated that when he came to know of the auction sale, he raised an objection on 27-9-89. THE Sub-Divisional Officer, Ballia, rejected it on 13-6-89 on the ground that it was brought on the record only on 5-6-89. THE procedure was against the provisions of the U. P. Z. A. and L. R. Act. THE plaintiff filed an appeal before the Commissioner, Varanasi, but no stay order was passed. Hence he moved the application on 16-6-89 before the High Court and got an interim stay order against dis-possession. THE writ petition, however, was dismissed on a technical ground on 21-5-93 standing that the petitioner- plaintiff could not have moved the High Court after having moved an appeal before the Commissioner. Immediately on the next day of the dismissal of the writ petition the Subdivision Officer issued the sale- certificate and declared the sale purchaser to be in possession of the suit properties and directed the fact to be registered before the sub-Registrar, Ballia, although his initial order dated 13-6-89 stood stayed up to 13-8-89 in Revision No. 14 of 199293 by the Commissioner. It was urged in the plaint that the Sub-Divisional Officer was not empowered to issue the sale certificate and to declare the sale purchaser to be in-possession. THE plaintiff had been in cultivating possession of the suit properties and the sale and subsequent order had cast a doubt on his title and hence the suit was filed after service of notice under Section 80 CPC. The auction-purchaser Dinanath Singh contested the suit and denied the averments made in the plaint. It was asserted that the auction sale was legal. It was legally confirmed and sale certificate was legally issued without violation of any order. It was stated that the plaintiff's suit was barred under different provisions of law and plaintiff could not get any relief. The learned counsel for the appellant placed before me certain relevant dates and events necessary for appreciation of the matter in controversy. On 20-12-68 Jainath Pathak and two brothers Sheonath and Brij Bihari took a loan from the Bank of a sum of Rs. 1800/- on mortgaging as security certain land belonging to them on an agreed rate of interest. Till 1973 certain sums were paid and only a rest of Rs. 1690/- remained due on. 26-4-89. The plaintiff Parasnath Mishra purchased one third share of Jainath Pathak in certain plots on 3-2-73. He made further purchase of one third share of Jainath in the plots after consolidation on 30-1073. Jainath had sold certain land to Raghunath the same were purchased by Parasnath from Raghunath on 11-8-82. On 26-4-89 Jainath had paid Rs. 1690/- to the bank and a no dues certificate was issued. On 3-5-89 the Sub-Divisional Officer sold one third share in the suit property by auction for realization of Rs. 1690/- and the sale was made for Rs. 86,000/ -. On 27-5-89 an objection was raised before the S. D. O. that the auction sale was a fraud as it was the land of the plaintiff and his name has already been mutated and nothing was due on the loan. On 13-6-89 the S. D. O. rejected the objection and confirmed the sale. on 14. 6-89 the plaintiff filed a revision. The Commissioner was not available. Accordingly, the plaintiff moved a writ petition on 20-6-89 and got an interim stay order. On 4- 11-89 the Commissioner had dismissed the revision for non-prosecution. On 21-5-9. 1 the writ petition stood dismissed as an alternative remedy was available to the petitioner. On 22-5-93 the S. D. O. issued the sale certificate mentioning the new numbers which were not sold. No enquiry was made. No notice was sent to the plaintiff even the file was not available which is said to be traceless even now. The S. D. O. , however, directed on 255-93 that the order dated 22-5-93. would remain stayed till 1-6-93. On 29-5- 93 the concerned suit was filed. On 31-5-93 the Civil Judge directed in the suit that the parties were to maintain status quo. Against the order of the Commissioner dismissing the revision for non-prosecution, the Board of Revenue was approached and on 14-793 further proceedings before the S. D. O. were stayed. On 31-7-93 the Civil Judge confirmed the interim order.
(3.) THE respondent also placed on record certain dates of events. On 20-5-68 loan was advanced and suit land stood mortgaged by Jainath Pathak as a security for the loan. Purchaser Parasnath was subject to the mortgage as purchaser was made in 1973 and 1982. Recovery certificate was issued to the Collector by the Bank before 20-8-85 the Collector attached the land in dispute of Jainath Pathak. ,on 20-8-85 the objection was filed against such attachment. Sale proclamation was issued on 3-4-89, fixing 3-5-89 for sale of the property of Jainath for recovery of Rs. 20,000/towards electricity dues and bank loan with interest but the recovery certificate was issued and the land was attached when the Bank Manager was not entitled to receive any amount towards the bank loan. Recovery certificate was not only for the bank loan but electricity dues also and payment to bank could not have absolved Jainath. On 3-5-89 the sale was conducted and declared in favour of the highest bidder Dinanath Singh for Rs. 86,000/ -. THE sale became absolute after the prescribed period from the date of sale. On 27-589, for the first time, Parasnath, the plaintiff, filed an application before the S. D. O. THE S. D. O. had no jurisdiction to entertain any such application on 27-5-89 as the auction sale was held on 3-5-89. THE required period of 30 days expired on 3-6-89. No deposit was made by Jainath Pathak or even by Parasnath as required under the law and the sale became absolute. On 13-6-89 the S. D. O. rejected the application of Parasnath and confirmed the sale. On 14-6-89 a time barred objection was filed by Parasnath before the Commissioner. No stay order was granted. Parasnath then filed a writ petition and obtained a stay order by concealment of material facts. On 5-7-95 a letter was issued by the electricity department certifying no dues from Jainath. THE photo copy was proved in Court without proper proof thereof. The defendant pressed the second appeal on the following substantial questions of law. (1) Bar of Section 125 K of U. P. Z,a. and L. R. Rules on the plaintiff claim to set aside the sale on the ground of an irregularity. (2) It fraud could be inferred merely for confirmation of the sale by the S. D. O. and not by the Collector ? (3) If fraud was pleaded and proved ? (4) If photo stat copy in paper No. 14-C could be read as evidence? (5) Bar of Section 34 of the Specific Relief Act ? (6) Bar of estoppel and acquiescence and res judicata ? (7) Bar of Section 41 of the T. P. Act? (8) Absence of proper notice under section 80 C. P. C. ?;