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Judgment
Vinod K. Sharma, J.
C.M. No. 4293-C of 2009
This is an application u/s 5 of the Limitation Act for condoning the delay of 26 days in filing the appeal.
For the reasons stated in the application the C.M. is allowed. The delay of 26 days in filing the appeal is condoned.
R.S.A. No. 1439 of 2009
This regular second appeal is directed against the judgment and decree dated 4.12.2008 passed by the learned Courts below decreeing the suit for declaration with consequential relief of permanent injunction.
The facts, which are not in dispute are that the land was initially on tenancy with the father of the plaintiffs/respondents and thereafter sold in auction. The total auction money was paid, and the respondents were put in possession. Subsequently without any notice to the plaintiffs/respondent or their father, the auction was cancelled, with a direction to hold a fresh auction.
The contention raised by the learned Counsel for the appellants is that the auction held was subject to approval by the Deputy Commissioner, who did not approve it, therefore, the auction stood cancelled. The plaintiff/respondents have no legal right.
It was not disputed that no notice, prior to cancellation of auction, was issued though it was admitted case that the possession of land was handed over after receipt of full sale consideration.
The learned Courts below rightly applied the principle of estoppel, to non-suit the appellants/defendant and set aside the cancellation.
The learned senior DAG contends that this appeal raises the following substantial question of law for consideration by this Court:
Whether the suit filed by the plaintiffs/respondent who were sons of the auction purchaser was maintainable?
On the substantial question of law the contention of the learned Counsel for the appellants is that during the life time of Lal Singh i.e. father of the plaintiffs, they had no locus standi to challenge the cancellation of auction.
The contention is required to be rejected for more than one reasons.
Firstly the plaintiffs were shown to be in cultivating possession and therefore they had interest in the property, to challenge the cancellation order being patently illegal, having been passed in violation of principle of natural justice.
Secondly, though specific issue was framed, it was not pressed by the defendant/appellants before the learned trial Court, nor the decision on the issue was challenged in first appeal, before learned lower appellate Court.
It is not open to the defendant/appellants to raise the point now before this Court in regular second appeal.
The substantial question of law is answered against the appellants.
No merit.
Dismissed.