Rajinder Singh And Another vs Union Of India And Others on 24 July, 2009

RSA No.4254 of 2008 (O&M)                                     1



       IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH..

                                  RSA No.4254 of 2008 (O&M)

                                  Date of Decision: 24.7.2009.

Rajinder Singh and another
                                                    ....Appellants

             Versus

Union of India and others
                                                     ...Respondents

CORAM : Hon'ble Mr. Justice Hemant Gupta.

Present:-    Mr. Mahavir Sandhu, Advocate
             for the appellants.

HEMANT GUPTA, J.

****

The plaintiffs are in second appeal aggrieved against the judgment

and decree passed by learned Court below whereby the suit of the plaintiffs

seeking a decree for declaration that plaintiffs are owners in actual physical and

cultivating possession of the land measuring 7 kanals 2 marlas situated at village

Ramgarh Majra, Tehsil Jagadhri and challenging the cancellation of auction

dated 8.11.1996 vide notice dated 22.6.1998 was dismissed.

The plaintiffs claim themselves to be in possession of land

measuring 7 kanals 2 marlas. It is asserted that in auction held on 8.11.1996 the

plaintiffs were highest bidder in the sum of Rs. 80,000/-. The plaintiffs deposited

1/4th of the total bid auction i.e. Rs.20,000/- and thereafter the plaintiffs are

owners in possession of the suit land. It is also pointed out that prior to auction,

father of the plaintiffs was in possession of suit land for last more than 20 years.

The defendants contested the suit pointing out that no notice under

Section 80 of the Code of Civil Procedure has been served. It was pointed out

that suit land was put to auction on 8.11.1996. The plaintiffs were highest bidder

but the same was subject to approval of competent authority. The settlement

Officer has not approved the auction vide order dated 17.3.1998. The auction

purchaser was informed about this order. It was also pleaded that plaintiffs are

not in possession of the suit land. It was further pointed out that the said land
RSA No.4254 of 2008 (O&M) 2

was again put to open auction on 29.7.1998. But in view of the interim order

passed by Civil Court, the auction was not completed.

Learned trial Court found that though the plaintiffs were the highest

bidder but since the bid has not been approved by the Settlement Officer,

therefore, the plaintiffs cannot claim any title on the basis of auction which

already stood cancelled. It was also found that suit is bad for want of notice

under Section 80 of the Code of Civil Procedure. Learned First Appellate Court

in an appeal filed by the appellants confirmed the findings recorded by learned

trial Court holding that notice under Section 80 of the Code of Civil Procedure

has not been served. The First Appellate Court also found that the suit land

was auctioned in favour of plaintiffs which was subject to confirmation from the

higher authorities but the same was not confirmed. The plaintiff appearing as

PW2 has admitted that the suit was subject to confirmation, therefore, the

plaintiffs cannot be treated to be owners of the suit land. Since the plaintiffs

have failed to prove to be owner, so they are not entitled to declaration sought

for.

Learned counsel for the plaintiffs has vehemently argued that the

suit has been dismissed only on the ground of non service of notice under

Section 80 of the Code of Civil Procedure and that plaintiffs had been writing to

the defendants so as to seek permission to deposit balance sale consideration.

Since permission was not granted, therefore, the defendants cannot take benefit

of their own wrong and cancel the auction.

The plaintiffs had filed a suit for declaration claiming title over the

suit property. It was incumbent upon the plaintiffs to serve notice under Section

80 of the Code of Civil Procedure. It is only in the event of urgent interim relief of

injunction, the service of notice under Section 80 of the Code of Civil Procedure

can be dispensed with.

Be that as it may, the fact remain that the plaintiffs claims to be

owner on the basis of auction conducted in their favour. They had admitted that

the sale was subject to confirmation. Sale was not confirmed. Therefore, the

plaintiffs cannot claim to be owners on the basis of unconfirmed sale and that
RSA No.4254 of 2008 (O&M) 3

too on deposit of 1/4th of the sale consideration. The plaintiffs had continued in

possession of public land by virtue of interim order so as to perpetuate the

illegalities.

Consequently, I do not find any illegality and irregularity in the

finding recorded or that the finding recorded gives rise to any substantial

question of law in the present appeal.

Dismissed.

                                                (HEMANT GUPTA)
24.7.2009                                            JUDGE
Reema