LODHA, J. - (1.) THIS is a plaintiff's second appeal arising out of a suit for possession and certain other ancillary reliefs in respect of a plot of land situated in the town of Merta.
(2.) ON 22-6-1956 the respondent-defendants Nos. 1 and 2 Dineshkumar and his father Kapurchand made an application to the Municipal Board, Merta for purchasing a plot of land which has been marked as GHNJ in the site-plan Ex. 1 filed with the plaint. ON this application the Municipal Board, Merta invited objections and ultimately directed that it may be put to auction. The highest bid received for the land was, however, inadequate, and, therefore, by its order dt. 13-9-1957 the Board directed that the plot GHRJ may be sold for Rs. 110/4/- to the respondents Dineshkumar and Kapurchand. This amount was accordingly deposited by Dineshkumar and Kapurchand on 16-10-1957, and a sale deed for this plot was executed by the Municipal Board in favour of these defendants on 30-10-1957. Meanwhile on 24-8 1957 the plaintiff Loon Karan had applied for purchasing another plot of land which has been shown as ABCDEF in the plan Ex. 1 and the order for sale of the same in favour of the plaintiff was passed on 28-9-1957. The plaintiff deposited the price of this plot on 8-10-1957 and accordingly a sale deed was executed in his favour for the plot ABCDEF on 26-10-1957. This sale deed has been marked Ex. 2. The plaintiff applied for construction on the plot ABcdef purchased by him to the Municipal Board, Merta whereupon an objection was preferred by the defendants Nos. 1 and 2 that a part of the plot ABcdef had already been sold to them by the Municipal Board, Merta by its order dated 13-8-1957, and it was further urged that the plot purchased by the plaintiff did not cover the portion marked AMNL shown in red colour in the plan. To put more precisely the contention of the defendants was that the portion AMNL was a part of the plot purchased by them and had not been sold to the plaintiff. In the alternative their case was that the disputed portion AMNL having been sold to them first could not have been sold again to the plaintiff. After a summary enquiry the Municipal Board in its order dated 12-4-1958 observed that the portion of the land marked AMNL had been by mistake sold to the plaintiff as well as to the defendants and this had given rise to the dispute between the parties. By a subsequent order dated 21-12 1958 the Board directed the plaintiff Loon Karan to leave the portion marked AMNL and to set the measurements of the land sold to him towards the south of the disputed portion of the land. He was also directed to submit his sale deed for correction. Aggrieved by the order of the Municipal Board dated 21-12-1958 the plaintiff instituted the present suit in the Court of Civil Judge, Merta. The suit was resisted by Dinesh Kumar and Kapurchand as well as by the Municipal Board, Merta, who filed separate written statements but took identical pleas. After recording the evidence produced by the parties the learned Civil Judge dismissed the plaintiff's suit and his judgment and decree have been upheld by the learned District Judge, Merta in appeal. Consequently the plaintiff has come in second appeal to this Court. The first question for determination is whether the disputed portion of the land marked AMNL has been sold to the plaintiff as well as to the defendants Nos. 1 and 2? The trial court held that that portion was not sold to the plaintiff at all. But the first appellate court has found that the disputed portion of the land is covered by the sale deed in favour of the defendants Nos. 1 and 2 as well as in the sale deed Ex. 2 executed by the Municipal Board, in favour of the plaintiff. Learned counsel for the respondents has assailed this finding. However, it appears that the finding of the learned District Judge in this connection is correct. It may be observed that during the course of arguments before the learned District Judge it was admitted on behalf of all the parties that the sale deeds granted to the plaintiff as well as to the defendants Nos. 1 and 2 cover the disputed land and to this extent there was overlapping. This concession having been made on behalf of the defendants Nos. 1 and 2 before the first appellate court it is hardly open to them to agitate this point over again in this appeal ; that apart, on a perusal of the sale deed Ex. 2 which contains a plan of the land sold to the plaintiff on its reverse as well as the statements of P. W. 1 Abdul Samim, who peppered the plan Ex. 1 filed with the plaint, and P. W. 2 Mohammad, who prepared the plan Ex. 3 submitted by the plaintiff along with his application dated 24 8-1957 and the statements of P. W. 3 Loon Karan-plaintiff, it becomes quite clear that the land sold to the plaintiff has been correctly marked as ABCDEF in the plan Ex. 1 which includes the disputed portion AMNL marked in red. I am further fortified in this view of mine by the order of the Municipal Board itself passed on 12-4-1958 which shows that the Municipal Board had also found that by mistake the disputed land AMNL had been sold first to the defendants Nos 1 and 2 and then to the plaintiff. Learned counsel for the respondents has failed to place any material to the contrary and all that he tried to show in this connection was that there was discrepancy between the plan Ex. 3 filed by the plaintiff along with his application and the plan Ex. 1 filed along with his plaint. His contention was that the north east corner of the plot sold to the plaintiff coincides with the north-west corner of Shri Kishen's house shown in the plan Ex. 3. It may be relevant here to point out that the width of the plot sold to the plaintiff covers the full length of Shrikishen's house north to south and even thereafter the plot sold to the plaintiff goes a little further towards the south. I do not see any discrepancy between the two plans and have come to the conclusion that the disputed portion of land AMNL was sold to the defendants Nos. 1 and 2 and is also covered by the sale deed Ex. 2. The next and most important question, however, is as to whether the defendants Nos. 1 and 2 had acquired complete title to the disputed portion of land before it was sold to the plaintiff. It may be recollected that the order for auction of the plot GHNJ was passed by the Municipality in the first instance but since the highest bid received during the auction was inadequate, the Municipality by its order dated 13-8-1957 directed its sale Rs. 110/4/ -. The decision of the case rests upon the interpretation of this order. The learned District Judge has held that this order amounted to an agreement to sell in favour of the defendants Nos. l and 2, and even though the sale deed was executed in favour of defendants Nos. 1 and 2 on 30-10-1957, the sale will be deemed to date back to 13-8-'57. Admittedly the sale in favour of the plaintiff took place on 26-10-1957. On this line of reasoning learned District Judge has held that the sale of the disputed portion of land will be deemed to have taken place in favour of the defendants Nos. 1 and 2 on a date prior to the date of sale in favour of the plaintiff. It is not disputed that none of the two defendants Dinesh Kumar and Kapurchand was present when the order dated 13-8 1957 was passed. By their application dated 22-6-1956 all that had been stated on their behalf was that they were prepared to purchase the land marked GHNJ on reasonable price. There is nothing to show that on 30-8 1957 or at any time thereafter they had communicated their consent to purchase this land at the price fixed by the Municipality by its order dated 13-8-1957. No doubt the price fixed by the Municipality in its order dated 13 8-1957 was deposited by them on 16-10-1957 and thereafter the sale deed was executed in their favour on 30-10-57. The learned District Judge has taken the order dated 13-8-1957 as a sort of acceptance on the part of the Municipal Board, Merta of the offer made by the defendants Nos. 1 and 2 in their application dated 22-6-1956 marked Ex, A. 3 on the record. However, I find it difficult to accept that conclusion. In the first place all that was prayed in the application Ex. A. 3 was that the defendants were prepared to purchase the land on a reasonable price. They had not given any definite price for which they were prepared to purchase the land. The defendants Nos. 1 and 2, according to me, were free to refuse the terms set out by the Municipality in its order dated 13-8-1957 for the sale of this land and if they thought that the price of Rs. 110/4/- fixed by the Municipality was excessive, the Municipality by no stretch of imagination could have forced the defendants Nos, 1 and 2 to purchase the land at the price fixed by it. In these circumstances it cannot be said that there was a completed contract on 13 8-1957 and the utmost that can be said is that unilaterally the Municipality decided to sell the land GHNJ to the defendants Nos. 1 and 2 on payment of Rs. 110/4/ -. The mere fact that the defendants Nos. 1 and 2 signified their acceptance of the order by depositing the price on 16-10-1957, is not sufficient to hold that the contract had become complete on 13-8-1957. In this view of the matter it is difficult to hold that there was actually any agreement to sell this land between the Municipal Board, Merta on the one hand, and the defendants Nos. 1 and 2 on the other on 13 8-57 for sale of the land GHNJ for Rs. 110/4/-, to the defendants Nos. 1 and 2. Learned counsel for the respondents urged that the order dated 13-8-1957 may be taken as a sale because the words used therein are "is being sold" (cspku dh tkrh gs ). It may be observed that the use of these words in the order does not advance the defendants' case any further. In view of what I have stated in respect of this order while dealing with the argument that it is an agreement to sell, it cannot be construed as a sale either by unilateral act of the Municipality. Besides that, admittedly no price had been paid on 13-8-57 and it has been specifically mentioned in this order that the sale deed would be executed after deposit of the price. This clearly shows that even the Municipality intended to transfer title in the land in favour of the defendants Nos. 1 and 2 only after the price had been paid. Learned counsel for the respondents also urged in the alternative that at any rate the plaintiff had treated the order dated 13-8-57 as a sale of the land GHNJ in favour of the defendants Nos. 1 and 2, and with full knowledge of the sale he made an application Ex. A. i dated 24-8-57 for sale of land marked ABCDEF including the disputed portion and therefore he cannot be said to be a bonafide purchaser for value without notice and is bound by the sale or the agreement to sell whatever it may be called in respect of the disputed land in favour of the defendants Nos. 1 and 2 by the order of the Municipality dated 13-8-1957. In this connection he has pressed into service sec. 27 (b) of the Specific Relief (Act No. 1 of 1177) and sec. 53-A of the Transfer of Property Act. It is urged that the defendants had paid the price of the land and had got possession of the land sold to them, and, therefore, the plaintiff was bound by the sale alleged to have been made in the defendants' favour by the Municipality's order dated 13-8-1957. This argument, in my opinion, is devoid of force. In the first place no such plea has been taken in the written statement nor any issue has been framed on the point nor is there any evidence on the record to show that the plaintiff applied for purchase of the disputed land with the knowledge of previous sale of the same, in favour of the defendants Nos. 1 and 2, and, therefore. , no such plea can be entertained now. Learned counsel, however, relied on the statement of D. W. 4 Ummeda Nath in respect of this contention. No doubt Shri Ummed Nath has stated that the plaintiff had made an application dated 22-6-1956 (Ex. A. 3) after having come to know of the order dated 13-8-1957 but this statement is neither here nor there and does not show whether and how the plaintiff had come to know that the land in question had been sold to the defendants Nos. 1 and 2. In view of the fore-going discussion there is no escape from the conclusion that the sale of the land CHAJ took place in favour of the defendants Nos. 1 and 2 on 30-10-1957, where as the sale of the same in favour of the plaintiff had been completed a little earlier, that is 26-10-57. Even if the matter is looked from the point of view of deposit of sale price then also the defendants' case does not stand on a higher footing inasmuch as already stated above, the plaintiff had deposited the price on 26-10-1957, whereas the defendants did so on 16-10-1957. Looked at from any angle it must be held that the title of the land in dispute had not passed in favour of the defendants at a date earlier than 26-10 1957, the date of the sale in plaintiff's favour. Learned counsel for the respondent urged as a last resort that the plaintiff's suit was not maintainable as he had not served a notice on the Municipal Board, before the institution of the suit as required by sec. 179 of the Rajasthan Town Municipalities Act, 1951. The learned District Judge has held that the sale of the plots of land in the present case to the plaintiff, and defendants Nos. 1 and 2 had been made by the Municipality not in exercise of its powers under the Municipal Act nor the Municipality purported to effect these sales in exercise of the powers conferred by the Act. It was observed that it was only in pursuance of the powers conferred upon it by the Government of Rajasthan Notification No. F. 1 (1656) LSC/50, dated 31-3-1956 that the sales of land in the present case were effected Learned counsel for the respondents, however, relied upon sec. 36 of the Act of 1951 in support of his argument. Sec. 36, it may be stated, refers to contracts or leases or sales made by the Municipality in respect of immovable property which has become vested in or has been acquired by it. Sec. 48 deals with the mode of acquisition of the property by the Municipality, and Gl. (g) under this action provides that all lends and buildings transferred to the Municipality by the Government or by gift or otherwise for local public purposes shall be considered as the property acquired by the Board. In the present case it is clear from the language of the notification to which reference has been made above that the land in question was not unconditionally transferred to the Municipality by the Government but the Municipality had been only authorised to sell or lease out all Government owned lands within the limits of the Municipalities on behalf of the Government in accordance with the Rules. It is further mentioned in the notification that the money obtained by sale of such lands shall be appropriated for the purpose of improvement or development of the Municipality and for no other purpose. Thus it is clear that the plots of land in the present case which admittedly belong to the Government had been sold by the Municipality not as its own land but behalf of the Government Consequently these sales must be deemed to have been made by the Municipality not in exercise of any powers conferred under the Municipal Act, nor did the Municipality in the present case purported to sell the land under this Act. It was clearly in exercise of the powers conferred by the notification referred to above that the sales were made by the Munisipality. Then there is another aspect of the matter. The plaintiff has prayed that the land in dispute has been sold to him, and the defendants Nos. 1 and 2 have no authority to deprive the plaintiff of the use of the land in question and to prevent him from raising construction thereon. No doubt the Municipality has been impleaded as a party to the suit, but the main relief is directed against the defendants Nos. 1 and 2. The position seems clear to me that in the present case it was not necessary for the plaintiff to have served a notice on the Municipality under S. 179 of the Rajasthan Town Municipalities Act, 1951. In this view of the matter the objection raised on behalf of the respondents regarding want of notice cannot be accepted. Incidentally it may also be mentioned that the learned District Judge has struck down the sale made in favour of the plaintiff on the ground that the procedure prescribed under the Marwar Patta Ordinance was not followed. Suffice it to say that the Marwar Patta Ordinance was repealed on 26-6-1957 whereas the proceedings for sale of the land in favour of the plaintiff were started as late as 24-8-1957. Consequently the view of the lower court on this point is not at all tenable.
(3.) NO other point was pressed by any of the parties. In the result I allow this appeal, set aside the judgments and decrees of both the lower courts and hereby decree the plaintiff's suit for possession of the land in dispute marked as AMNL marked in red and further restrain the defendants from interfering with the plaintiff's possession over it. It will, however, be open to the respondents Nos. 1 and 2 to remove any construction which they have made on the disputed land AMNL. Before parting with the case I cannot fail to observe that this unfortunate litigation between the two private parties has come up on account of negligence on the part of Municipal Board itself of having sold the same piece of land to two parties. In this view of the matter I leave the parties to bear their own costs throughout. Learned counsel for the respondents prays for grant of leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed. . ;