Jasodabai and Others vs Smt. Sewantibai and Others

A.K. Shrivastava, J.

This is defendants second appeal.

In brief the suit of plaintiff is that one Narain filed a suit against Mangilal who was the predecessors of defendants. That suit was registered as 97-B/68. In that suit Narain sought decree of money against Mangilal which was borrowed by him. That suit was decreed. For the realisation of the decretal amount, the suit land was attached and put to auction. On 12-7-1976 original plaintiff Narain being the highest bidder bought the land in auction sale for Rs. 6500/-. On 4-11-1976 a sale certificate was issued in favour of plaintiff in that regard and on 12-4-78 warrant of possession was issued and the possession was delivered to plaintiff on 16-4-1978. Thereafter, the name of original plaintiff Narain was also mutated in the revenue record vide order dated 19-12-1978. It has been pleaded by the plaintiff that after having obtained possession through possession warrant on 16-4-1978, he started cultivating the land in question. On 29-6-79, the defendants tried to interfere in the possession of the plaintiff hence the present suit for injunction has been filed.

The averments made by the plaintiff were denied by the defendants. It has been putforth by them that they were not aware about the auction sale. The defendants denied the possession of plaintiff and prayed that suit be dismissed.

The Trial Court on the basis of the pleadings of the parties framed issues and recorded the evidence. The Trial Court partly decreed the suit and directed defendants not to interfere in the possession of the decretal possession of the suit land, the description of which is mentioned in the judgment. The Trial Court dismissed the suit for part of suit land, the description of which is given in the judgment.

Being dissatisfied by the decree, both the parties preferred appeals. The plaintiff preferred appeal against that part of the decree by which his suit was partly dismissed. The defendants filed appeal against the decretal part of the decree of the Trial Court. The First Appellate Court by common judgment dated 13-2-1990 allowed the appeal of plaintiff and decreed his suit in toto. The appeal (Civil Appeal No. 68-A/85 New No. 1-A/89) which was filed by the defendants was dismissed. The net result is that the suit of appellant of injunction has been decreed in toto. Hence this second appeal by the defendants.

This second appeal was admitted on 17-9-90 on the following substantial questions of law :

(1) Whether, the learned First Appellate Court''s finding regarding possession is vitiated because it completely over-looked to consider the oral evidence led by the appellants about their possession over the suit lands ?

(2) Whether, the judgment of the Lower Appellate Court can be sustained even though it did not decide the application for amendment of the written statement, which was to have been considered alongwith the final hearing and decided in the judgment ?"

Regarding substantial question of law No. 1 :

It has been vehemently contended by learned Counsel for the appellants that the Appellate Court erred in substantial error of law by overlooking and considering the oral evidence led by the appellants in regard to the possession. On the other hand, it has been contended by Shri B.A. Nigam, learned Counsel for respondents that the Appellate Court after considering the entire material placed on record has come to the conclusion that the plaintiff is in possession of the entire suit land. It has also been putforth by him that the land was purchased by original plaintiff Narain in auction sale and later on the sale certificate was also issued on 4-11-1976 and in pursuance to the sale certificate the warrant of possession was issued and the possession was delivered on 16-4-78. He has also invited my attention that in pursuance to the sale certificate and the possession, the name of original plaintiff was also mutated in the revenue papers. The contention of learned Counsel for appellants is that the defendants were not even aware about any Court proceeding and they only came to know when plaintiff came to take the possession. It be seen that, according to defendants'' own case they came to know about passing of the decree, issuance of sale certificate etc. on 16-4-78 but they did not file any proceeding in any Court challenging and setting aside the sale and if that is the position, according to me, now defendants can not raise the validity of the auction proceedings and delivery of possession. Bailiff-Mannulal (P.W. 2) has stated that the possession was delivered to the plaintiff in pursuance to the sale certificate and possession warrant. The possession warrant is Ex. P-5. Since defendants did not raise any objection regarding the same by filing any application under Order XXI Rule 90, CPC, according to me, the sale became absolute under Order XXI Rule 92, CPC and the possession was delivered in terms of Rule 95 of Order XXI, CPC. Looking to the document of delivery of possession, it is revealed that the possession of the suit land was delivered to plaintiff Narain. This being a pure finding of fact can not be interfered while exercising jurisdiction u/s 100, CPC. Substantial question of law No. 1 is answered accordingly.

Regarding substantial question of law No. 2 :

It has been vehemently argued by learned Counsel for appellant that the amendment application was moved before the Appellate Court to amend the written statement that amendment application was marked by the Appellate Court as I.A. No. 7. Learned Counsel for appellants has invited my attention to the order-sheet dated 7-8-89 and has submitted that on that day the amendment application was moved and ultimately it was heard alongwith the appeal on 22-1-1990 but no decision was given by the Appellate Court while dismissing the appeal of defendants. According to learned Counsel in this view of the matter, the Appellate Court may be directed to re-decide the appeal and to decide the application. The argument so advanced at the first blush appears to be quite attractive, however, on deeper scrutiny, is found to be devoid of any substance. The contention of learned Counsel for appellants is that the basic averments in regard to the amendment application is already in the written statement, the proposed amendment is nothing but the explanation of it. I am failed to understand that if the basic ingredients of the facts which are raised in the amendment application, are in the written statement what was the necessity to file the same in the Appellate Court. There is no explanation that why it was not filed in the Trial Court. According to me, it was filed only to prolong the case. This fact can not be marginalised and blinked away that admittedly defendants did not filed any application to set aside the auction sale as required under Rules 89 and 90 of Order XXI, CPC. Since no application was filed by the defendants to set-aside the sale, no case of their is made out. Since no action has been taken by the defendants, challenging the sale proceeding and sale certificate, according to me, the possession which was delivered under Rule 95 of Order XXI, CPC, to the original plaintiff Narain, whose legal representatives are present respondents, the defendants had no right, title and interest to interfere in their possession. Substantial question of law No. 2 is answered accordingly.

Ex consequenti, this appeal is found to be devoid of any substance and the same is hereby dismissed without any order as to costs.