SHARMA, J. - (1.) THE leading facts of this second appeal may be stated below:
(2.) THE defendant respondent No. 4 Nemi Chand (since deceased, now represented by legal representatives, obtained loan from State Bank of Jhalawar after mortgaging the suit shop. Since the loan amount remained unpaid, therefore, proceedings for effecting recovery came to the initiated under the Rajasthan Public Demands Recovery Act, 1952 (for short, PDR Act0. On receipt of request from the Recovery Officer (defendant No. 3), the Collector, Jhalawar issued a notice under Section 4 of the PDR Act, which was stated to be served on defendant Nemi Chand on or about 24. 8. 1954. THEreafter, Nemichand filed a petition (Ex. A/5) on 20. 9. 1954 and denied his liabilities under Section 8 of the PDR Act. However, the Collector made the certificate absolute on 19. 1. 1956. Feeling aggrieved by the order of the Collector dated 19. 1. 1956, defendant Nemichand resorted to the provisions of Section 23-A of the PDR Act by filing an appeal before he Revenue Appellate Authority. It may be noted that in the meantime, defendant Nemichand executed an agreement to sell Ex. 1 on 28. 9. 1956. Ultimately, the suit shop was auctioned on 28. 10. 1968 in favour of defendant appellant Amar Singh for a sum of Rs. 4100/ -. The auction purchaser deposited 1/4th of the auction price on 29. 10. 68 and 3/4th on 26. 11. 1968. On 28. 1. 1969, Advocate for plaintiff respondent Laxman issued a notice (Ex. 6) under Section 80 CPC to the Collector and Recovery Officer, Jhalawar and thereafter Laxman filed a suit for declaration on 30. 7. 1969. In para 2 of the plaint, the plaintiff has averred that he has purchased the suit shop from defendant Nemichand on 28. 9. 1956 and since then he has been in possession as owner of the shop. On this premise, the plaintiff sought declaration to the effect that plaintiff is the owner and in possession of the disputed shop detailed out in para 1 of the plaint. He further sought declaration to the effect that attachment and auction proceedings initiated by the defendants No. 1 and 2, namely State of Rajasthan and Recovery Officer respectively are illegal and void. The defendants denied the averments made in the plaint by filing written statements. The learned trial Court, on the basis of pleadings of the parties, framed issues and at the conclusion of trial and on consideration of evidence dismissed the plaintiff's suit with costs vide its judgment and decree dated 6. 3. 1979, holding that by virtue of agreement Ex. 1 which was reduced in writing on a plain paper and was not registered in favour of plaintiff Laxman, cannot be considered to be the sale of the suit property. It was further held that the alleged agreement to sell Ex. 1 was void in view of the provisions of Section 7 of the PDR Act. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal before the learned District Judge, Jhalawar, which came to be decided by the learned Civil Judge. The lower appellate court vide its judgment and decree dated 2. 1. 1982 accepted the plaintiff's appeal and quashed the judgment and decree passed by the learned trial Court. The appellate Court declared the plaintiff as owner and in possession of the disputed shop by operation of law and held no one would be entitled to interfere with the possession of the plaintiff over the disputed shop. In reversing the judgment of the trial Court, the first appellate Court has recorded a finding that Ex. 1 meets the requirements of Section 53-A of the TP Act and on that basis the plaintiff has acquired proprietary right under Section 53-A of the TP Act.
(3.) THE defendant Amar Singh, feeling aggrieved by the judgment and decree passed by the appellate Court preferred second appeal before this Court in Second Appeal. During pendency of appeal, defendant appellant Nemichand expired and he is now represented by his legal representatives. This Court while admitting the second appeal on 2. 12. 2005 formulated following substantial questions of law for decision in he appeal: (1) Whether the respondent No. 1 is entitled to take benefit of the said void agreement of sale dated 28. 9. 56 for claiming any right in this suit property? (2) Whether on the basis of the alleged void Agreement of sale dated 26. 9. 56, respondent No. 1 can claim any right to file any suit as a plaintiff under Section 53-A of the T. P. Act? (3) Whether Section 53-A of the Transfer of Property Act only debars the Transferor from enforcing against the transferee any right in the suit property or other person such as appellant and State Bank of Jhalawar, are also debarred from enforcing their right in respect of the suit property? (4) Whether after service of notice u/s. 6 of he P. D. R. Act on the defaulter Nemichand, there subsisted any right in favour of the said defaulter Nemichand to enter into an agreement of sale dated 28. 9. 56 and whether respondent No. 1 could claim any right by adverse possession on the basis of the said document against the State Government or the State Bank of Jhalawar by afflux of alleged period of 12 years from 28. 9. 56? ;