JUDGMENT
1. This second appeal is directed against the judgment and decree dated 4-11-96 passed by the District Judge. Ballia, in Civil Appeal No. 21 of 1996 whereby the District Judge had confirmed the judgment and decree dated 31-5-96 recorded by the civil Judge (Senior Division). Ballia. in Suit No. 94 of 1993.
2. The suit in question was filed by Paras Nath Mishra, respondent No. 1 in the present appeal. He had instituted the suit for a declaration that an action sale of the suit property dated 3-5-89 and its subsequent confirmation dated 13-6-89 and the sale certificate dated 21 -5-93 were illegal and void. He made a prayer for a further declaration that the aforesaid sale had not conferred any right on the defendant. Accordingly the plaintiff prayed for an injunction so that the defendant No. 5 (present appellant) may not disturb the possession of the plaintiff on the basis of the aforesaid auction sale. It was his case that he purchased the suit property by registered sale deed from the defendant No. 5. Jainath Pathak. and was in occupation of the same as owner thereof. His name stood recorded in the revenue record for the suit properties. This Jainath Pathak had taken a loan from the U. P. Slate Co-operative Land Development Bank and he had paid back the dues on 26-4-89. The bank had proceeded to recover the dues prior to 26-4-89 and the District Magistrate hud issued .warrant of recovery. After payment the recovery could not be made from Jainalh Pathak. but on 3-5-89 the suit properties were sold in pursuance to the recovery proceedings. This auction sale was fradulent as Jainath Pathak had already paid back the dues and his lands were not open to be auctioned. The old plots were given ir, mortgage as security to the loan and the new plots could not have been sold. The bunk failed to intimate the District Magistrate that UK- money has been paid back and for a paltry sum of' Rs. 1690/- a property worth of Rs. 86,000/- was fradulently sold away. Sale was made only in respect of one third share in the suit property but the sale certificate was issued without any boundary of the land sold. The plaintiff further stated that when he came to know of the auction sale, he raised an objection on 27-9-89. The Sub-Divisional Officer. Ballia, rejected it on 13-6-89 on the ground that it was brought on the record only on 5-6-89, The procedure was against the provisions of the U.P.Z.A. & L.R. Act. The plaintiff filed an appeal before the Commissioner, Varanasi. but no stay order was passed. Hence he moved the application on 16-6-89 before the High Court and got an interim stay order against dis-possession. The writ petition, however, was dismissed on a technical ground on 21-5-93 standing that the petitioner-plaintiff could not have moved the High Court after having moved an appeal before the Commissioner. Immediately on the next day of the dismissal of the writ petition the Sub-Division Officer issued the sale-certificate and declared the sale purchaser to be in possession of the suit properties and directed the fact to be registered before the sub-Registrar, Batlia, although his initial order dated 13-6-89 stood stayed up to 13-8-89 in Revision No. 14 of 1992-93 by the Commissioner. It was urged in the plaint that the Sub-Divisional Officer was not empowered to issue the sale certificate and to declare the sale purchaser to be in-possession. The plaintiff had been in cultivating possession of the suit properties and the sale and subsequent order had cast a doubt on his title and hence the suit was filed after service of notice under Section 80 CPC.
3. The auction-purchaser Dinanalh Singh contested the suit and denied the averments made in the plaint. It was asserted that the auction sale was legal. It was legally confirmed and sale-certificate was legally issued without violation of any order. It was stated that the plaintiffs suit was barred under different provisions of law and plaintiff could not get any relief.
4. The learned counsel for the appellant placed before me certain relevant dates and events necessary for appreciation of the matter in controversy. On 20-12-68 Jainath Palhak and two brothers Sheonath and Brij Bihari look a loan from the Bank of a sum of Rs. 1800/- on mortgaging as security certain land belonging to them on an agreed rate of interest. Till 1973 certain sums were paid and only a rest of Rs. 1690/- remained due on 26-4-89. The plaintiff Parasnath Mishra purchased one third share of Jainath Palhak in certain plots on 3-2-73. He made further purchase of one third share of Jainaih in the plots after consolidation on 30-10-73. Jainath had sold certain land to Raghunath the same were purchased by Parasnath from Raghunath on 11-8-82. On 26-4-89 Jainaih had paid Rs. 1690/- to the bank and a no dues certificate was issued. On 3-5-89 the Sub-Divisional Officer sold one third share in the suit property by auciion for realization of Rs. 1690/- and the sale was made for Rs. 86,000/-. On 27-5-89 an objection was raised before the S.D.O. that the auction sale was a fraud as it was the land of the plaintiff and his name has already been mutated and nothing was due on the loan. On 13-6-89 the S.D.O. rejected the objection and confirmed the sale, on 14-6-89 the plaintiff filed a revision. The Commissioner was not available. Accordingly, the plaintiff moved a writ petition on 20-6-89 and got an interim stay order. On 4-11-89 the Commissioner had dismissed the revision for non-prosecution. On 21-5-93 the writ petition stood dismissed as an alternative remedy was available to the petitioner. On 22-5-93 the S.D.O. issued the sale certificate mentioning the new numbers which were not sold. No enquiry was made. No notice was sent to the plaintiff even the file was not available which is said to be traceless even now. The S. D. O.. however, directed on 25-5-93 that the order dated 22-5-93 would remain stayed till 1-6-93. On 29-5-93 the concerned suit was filed. On 31 -5-93 the Civil Judge directed in the suit that the parties were to maintain status quo. Against the order of the Commissioner dismissing the revision for non-prosecution, the Board of Revenue was approached and on 14-7-93 further proceedings before the S.D.O. were stayed. On 31-7-93 the Civil Judge confirmed the interim order.
5. The responent also placed on record certain dates of events. On 20-5-68 loan was advanced and suit land stood morgaged by Jainaih Pathak as a security for the loan. Purchaser Parasnath was subject to the mortgage as purchasher was madein 1973 and 1982. Recovery certificate was issued to the Collector by the Bank before 20-8-85 the Collector attached the land in dispute of Jainath Pathak. On 20-8-85 the objection was filed against such attachment. Sale proclamation was issued on 3-4-89, fixing 3-5-89 for sale of the property of Jainaih for recovery of Rs. 20,000/-towards electricity dues and bank loan with interest but the recovery certificate was issued and the land was attached when the Bank Manager was not entitled to receive any amount towards the bank loan. Recovery certificate was not only for the bank loan bui electricity dues also and payment to bank could not have absolved Jainath, On 3-5-89 the sale was conducted and declared in favour of the highest bidder Dinanalh Singh for Rs. 86,000/-. The sale became absolute after the prescribed period from the date of sale. On 27-5-89, for the first time, Parasnath, the plainliff, filed an application before the S.D.O. The S.D.O. had no jurisdiction to entertain any such application on 27-5-89 as the auciion sale was held on 3-5-89. The required period of 30 days expired on 3-6-89. No deposit was made by Jainaih Pathak or even by Parasnath as required under the taw and the sale became absolute. On 13-6-89 the S.D.O. rejected the application of Parasnath and confirmed the sale. On 14-6-89 a lime barred objection was filed by Parasnath before the Commissioner. No slay order was granted. Parasnalh then filed a writ petition and obtained a stay order by concealment of material facts. On 5-7-95 a letter was issued by the electricity department certifying no dues from Jainath. The photo copy was proved in Court without proper proof thereof.
6. The defendant pressed the second appeal on the following substantial questions of law.
(1) Bar of Section 225 K of U.P.Z.A. & L. R. Rules on the plaintiff claim to set aside the sale on the ground of an irregularity.
(2) If fraud could be inferred merely for confirmation of the sale by the S.D.O. and not by the Collector ?
(3) If fraud was pleaded and proved ?
(4) If photo stat copy in paper No. 14-C could be read as evidence?
(5) Bar of Section 34 of the Specific Relief Act ?
(6) Bar of estoppel and acquiescence and res judicata ?
(7) Bar of Section 41 of the T. P. Act?
(8) Absence of propernotice under Section 80 C.P.C.?
7. From the sequence of events pleaded and pressed by the parties, it appears that the loan was taken on 20-12-68 not only by Jainath but also by his two brothers Sheonath and Brij Bihari and certain lands were mortgaged as security for such loan. The sale in favour of the plaintiff was made in 1973 and in 1982. The sale on the basis of the recovery certificate was made in May, 1989. This sate was made to the extent of one third share in the suit property stating that it belonged to Jainath. This recovery certificate was issued for the dues to the bank on account of the aforesaid loan as also on account of certain unpaid electricity dues. Presuming, but not conceding, at this stage, that both dues were recoverable as arrears of land revenue, undisputedly the provisions of Section 279 of the U.P.Z.A. & L. R. Act would be applicable to control the procedure for recovery. If it is really an arrear of land revenue then, under, this Section the holding in respect of which the arrear is due may be attached and sold. Attachment and sale of other immovable properly of adefaulter may also be made to recover an arrear of land revenue when something isdue not as land revenue in the proper sense but the recovery of which is permitted to be done as if it were a land revenue Section 279 (f) of the U. P. Z. A. & L. R. Act would be the only provision for sale of an immovable properly of the defaulter. In addition to attachment and sale of the immovable property, arrest and detention of the defaulter is also an accepted mode of recovery as indicated in Section 279(b). Whenever it is made to appear before the Tehsildar that an arrear of land revenue has become due he is to issue a writ of demand calling upon the defaulter to pay the amount within the time to be specified. In addition to or in lieu of writ of demand the defaulter may be called upon through a citation to appear and deposit the arrears due on a date to be specified (Section 280 of the Act). Section 286 provides that the sum of money recoverable as arrears of land revenue bill not due in respect of any specific land may be recovered by process under this section from any immovable property of the defaulter including any holding of which he is a bhumidhar or asami. Section 294 empowers the State to make rules for the purpose of carrying out into effect the provisions of Chapter X of the U.P.Z.A. & L. R. Act covering Sections 279 and 294.
8. Under the aforesaid powers U.P.Z.A. & L.R. Rules were framed in 1952 and the rules relevant to the presenl proceedings stand covered under Rule 281 onwards. Rule 281 requires that recourse can only be had to the sale of a holding under Section 284 when the process specified in Clause (a), (b), (c) or (d) of Section 279 are exhausted and found to be insufficient for the recovery of the arrears. The process for sale of holding and other immovable property under Section 286 shall be issued by the Collector. Rule 285A states that every sale made under Sections 284 and 286 is to be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. No such sale shall take place until after the expiration of atleast 30 days from the dale of which the proclamation under Rule 282 was issued. It is within the power of the Collector to postpone the sale from time to time. The term 'Collector'- stands defined in the Act itself. Section 3(4) defines the word Collector to mean an officer appointed as Collector under the provisions, of the U.P. Revenue Act and includes an Assistant Collector of the Ist Class empowered by the Slate Government by a notification in the gazette to discharge all or any of the functions of a Collector under this Act.
9. The arrears, as aforesaid were on two counts. Firstly, Jainath failed to clear off the dues of the bank and secondly, Jainath failed to pay the electricity dues. None of these arrears related to any panicular holding. A distinction can always be made between the land revenue for a particular holdings and a due upon a loan although secured by mortgage. The bank in this case did not proceed in the capacity of a mortgagee and did not pray, in a proper suit, for foreclosure. The bank simply claimed back its dues and notwithstanding the alleged mortgage in favour of the hank for certain lands the due could not be termed as a land revenue for the lands said to have been mortgaged. The question of mortgage or land revenue does not arise for the electricity dues at all. Thus it can safely be presumed that for the arrears of land revenue in question the Collector on the basis of the recovery certificate, could have proceeded against an immovable property of Jainath. We are not concerned with the other loanees as the recovery certificate was issued in respect of Jainath and his property alone. Immediately a question would arise whetheron the date of the recovery proceeding or on the date of the sale the land did belong to Jainath.
10. The learned counsels took me through several case laws to illustrate their own points regarding the validity or otherwise of the auction sale concerning its procedure. In my view the case laws may not be relevant to the present proceed! ngs.as the procedure for a sale may not be of that importance when, under the law a sale of the property of the debtor only could have been made and not the property of another and we are look to the question if the properly sold was the property of Jainath on the date of the auction sale. One case law, however may be referred in this connection that stands reported in AIR 1968 SC 954 : (1968 All LJ 545). A decree was passed against a lunatic without appointment of a guardian for him. The decree was held to be a nullity and the sale held in execution of that decree was void ab initio. The Supreme Court ruled that in such a case a question would nol arise whethera party takes resorl to the provisions of the Order 21 Rules 89 and 90 to have the sale set aside. On the facts of the case, it is found that the sale in favour of the plaintiffs were made long prior to the initiation of the recovery proceedings. The recovery proceedings in its turn was direcled against Jainalh only and under the provisions of the U.p.Z.A. & L. R. Act either the property in respect of which the land revenue related or any other property of Jainath could have been sold. Undoubtedly, on the date of the auction sale Jainalh had no subsisting title on the suit property as il has already been sold away to the plaintiff. It is absolutely another question if the sale was subject to the mortgage of the lands in favour of the bank. The bank had not chosen to file a regular suit touching the mortgage. On the basis of the recovery certificate, a land which did not belong to Jainalh could nol have been sold and looked from this angle the sale in favour of the defendant-appellant was a nullity. In view of the decision of the Supreme Court in AIR 1968 SC 954 : (1968 All LJ 545) (supra), aquestion would not arise whether a proper application under Order 21 Rule 89 or 90 was necessary. Here was a sale which was no sate under the law and the plaintiffs had every right to pray for a declaration and olher reliefs declaring the sale as null and void, Although on different considerations the courts below had held the sale to be a nullity and had upheld the right of the plaintiffs over the suit property. This finding may not, therefore, be disturbed.
11. The appeal, accordingly, stands dismissed. The parties, however, are directed to bear their own costs.
12. Appeal dismissed.