Jagir Singh vs Jhanda Singh and ors.

J.V. Gupta, J.

This is defendant''s second appeal against whom the suit for the grant of the declaration has been dismissed by the trial Court, but decreed in appeal.

The plaintiff filed the suit for the grant of the declaration to the effect that the sale of land measuring 23 Kanals 2 Marlas in favour of defendant No. 2 i.e., the defendantappellant for a sum Rs. 9,315/ which was confirmed by the Commissioner on May 22, 1979, was illegal, void and without jurisdiction as well as ineffective against his rights. As a consequential relief, he also claimed joint possession subject to the mortgage of the land measuring 11 Kanals 6 Marla. According to him, he was a lambardar of village Saikoke. A case under section 409, Indian Penal Code, was registered against him on the allegations of misappropriation of Rs. 4,812.82, as the arrears of land revenue from Kharif 1952 to Rabi 1960. He was acquitted in the said case. For effecting recovery of the amount of Rs. 4,812.82, the plaintiff''s share in the land was put to auction on January 27, 1966 and was sold for Rs. 9,315/ in favour of Jagir Singh, defendantappellant, being the highest bidder. The plaintiff filed objections to the said auction, but the same were rejected. Appeal, and revision against the same were also dismissed. The sale having been confirmed by the Commissioner on May 22, 1979, the same was challenged in the present suit, on the ground that the plaintiff was not a defaulter as defined under section 3(8) of the Punjab Land Revenue Act, (hereinafter called the Act), and as such, the amount of Rs. 4,812.82 alleged to have been misappropriated by him could not be legally recovered by attachment and sale of his land. He had already sold the land measuring 11 kanals 2 marlas to Makhan Singh, defendant No. 3, for a sum of Rs. 1,500/ on August 26, 1964. The remaining land was under mortgage with the defendantappellant for a sum of Rs. 3,000/. The State of Punjab contested the suit inter alia on the ground that the plaintiff was a lambardar and had recovered the Government money i.e., the land revenue and other cesses and, thus, he was a defaulter within the meaning of section 3(8) of the Act. The sale was valid and that the civil Court had no jurisdiction to try the suit. Defendant Nos. 2 and 3 filed their separate written statement. It was pleaded by them that the sale was valid and in any case, the plaintiff''s suit was barred by time. The trial Court found that there was no illegality in the auction proceedings and, therefore, the same could not be said to be in any way void and without jurisdiction and, thus, inoperative against the rights of the plaintiff. It was further found that the suit was barred by time in view of article 99 of the Limitation Act, 1963 (hereinafter called the new Act), it having been filed after more than one year from the confirmation order dated May 22, 1979, whereas the suit was filed on November 14, 1980. In view of the said findings, the plaintiff''s suit was dismissed. In appeal, the learned District Judge relying upon the Division Bench judgment of this Court in Gurmukh Singh v. The State of Punjab, 1971 Punjab Law Journal 167, where in it was held that where a lambardar embezzled the amount collected as land revenue, he cannot be deemed to be a defaulter within the scope of section 3(8) of the Act, found that the plaintiff is not a defaulter within the meaning of section 3(8) of the Act as it stood prior to the amendment; the amendment having not been made retrospectively, the attachment and sale of his land was illegal. It was, fur ther, concluded that the suit filed by him was within time in view of article 113 of the new Act. According to the learned counsel, article 99 applied to the cases for setting aside of a sale made by a civil or a revenue Court when the sale is voidable, but if the sale is void, as in the represent case, the said article had no applicability. In view of these findings, the plaintiff''s suit was decreed.

The only contention raised on behalf of the appellant is that the suit was barred by time in view of article 99 of the new Act. According to the learned counsel, this being the specific article applicable to the case, the residuary article 113 was not attracted. On the other hand, the learned counsel for the plaintiffrespondent submitted that article 99 applied only to the sales which were voidable. If their sales were void ab initio, then article 99 had no applicability. Then, it will be residuary article 113 which will govern the case. In support of the contention, the learned counsel relied upon Ajit Singh v. Hem Raj, A.I.R. 1956 Punjab 139.

After hearing the learned counsel for the parties, I do not find any force in the contention raised on behalf of the appellant.

Article 12 of the Limitation Act, 1908, corresponds to article 99 of the new Act. In Ajit Singh''s case (supra), it was held by this Court that to entitle a Hindu son to have a Court sale in execution of a decree against his father set aside it has to be shown that the debt was tainted with immorality or as a matter of fact it did not exist. In either case, the sale is unassailable till these two facts or either of them are proved, and therefore the sale is a voidable one and not a void sale. As such a suit by the son to set aside the sale is governed by article 12(a) of the said Limitation Act. It is, therefore, evident that if the sale is void, then article 99 of the new Act is not attracted. In Thangachi v. Ahmed Hussain, A.I.R. 1957 Madras 194, it was held that article 12 of the Limitation Act, 1908, applied to the suits to set aside sales referred to therein. A sale can be set aside. This article will not, therefore, apply to cases where the plaintiff would not be bound by the sale even if it were not set by a person only if it is said that it is binding on him unless and until it is set aside. This article will, therefore, not apply to the cases where the plaintiff would not be bound by the sale even if it were not set aside. A person may not be bound by a sale, (i) either because he is not a party to the decree or proceeding in which the sale is held, or (ii) because the sale itself is null and void and without jurisdiction. In the first case, the sale cannot in fact be set aside by a third party because as between the parties to the decree or other proceedings, the sale will be valid and binding. In the latter case, there is nothing to be set aside. The plaintiff in such a case can get a declaration that the interest of the trust (in that case) are not affected by the sale. In fact, even if the plaintiff sues to set aside such sale, it will be regarded as being in effect a suit for such a declaration. Such a suit for declaration is not governed by article 12 of the Limitation Act, 1908. In view of the abovesaid two rulings, I am of the considered opinion that it was the residuary article 113 of the new Act, which applied to the present case, as the plaintiff could not be held to be a defaulter as defined under section 3(8) of the Act. Once it is so found, then the sale could not be made and was without jurisdiction.

Consequently, this appeal fails and is dismissed with costs.