JUDGMENT
A.K. Shrivastava, J.
1. These three appeals have been preferred by three different defendants assailing the judgment and decree passed by the Trial Court decreeing the suit of plaintiffs.
2. A suit for declaration and injunction has been filed by plaintiffs that the sale certificate dated 20-12-1997 issued in regard to house No. 66 and 244 Ward No. 15 district Satna is null and void. Plaintiffs further prayed, that if during the pendency of the suit, defendant Nos. 1 and 2 takes possession of the suit property, then possession be obtained from them and be delivered to plaintiffs. It has further been prayed that the amount of rent which is realized by defendant Nos. 1 and 2 from tenants inducted in the suit house, be paid to the plaintiffs.
3. In brief the suit of plaintiffs is that there was an order for realization of the sale tax against defendant No. 3 M/s. Jeevanlal Durga Prasad. In order to realise the sales tax, suit houses were attached and ultimately sold in auction. Defendant No. 1 Parasram purchased the suit house bearing House No. 224 for Rs. 46,600/- and defendant No. 2 Moolchand Agrawal purchased the house No. 66 for Rs. 12000/-. Both these suit houses were purchased in auction sale. In both these houses tenants were inducted and defendant Nos. 1 and 2 are realizing the rent from the tenants. This fact is not disputed by the defendants that this Court in Miscellaneous Petition Nos. 296/80, 299/ 80 and 53/83, set aside the proceedings of auction sale and further directed that the petitioner of writ petition must be put in the same position by the respondents as if there had been no order of assessment passed against him. These orders were passed on 24-8-1992.
4. Plaintiff No. 1 Babulal, plaintiff No. 2 Natthulal and defendant No. 3 Jeevanlal are real brothers. Earlier they were having joint Hindu Family and plaintiff No. 2 Natthulal was the Karta Khandan. On 15-5-1959 there was a partition between these three brothers and it was settled in the partition that one house of Satna be sold in order to pay the debt and this house was given to Babulal and defendant Jeevanlal for the repayment of the debt. Jeevanlal could not pay the debt as such plaintiff Babulal requested him that the house may be given to him and he will pay the entire debt and thus Babulal became the owner of that house. Thereafter, in the year 1962 after dismantling the Kaccha house, plaintiff Babulal constructed a Pacca House and on this house Jeevanlal is having no right, title and interest. The partition which was affected on 15-5-1959 was an oral partition and a memorandum thereof was reduced in writing on 19-6-1959. Plaintiff Nos. 3 and 4, namely, Rampyari and Bela Bal respectively purchased house No. 845/2 (new No. 224) on 21-7-1965 by registered sale deed from one Damodar Das and in this sale deed, defendant No. 2 Moolchand, signed the document as witness. Since then, plaintiff Nos. 3 and 4 are possessing the said house. In this house the tenants are inducted and defendants are realizing the rent from them.
5. According to the plaintiffs, defendant No. 4 sold both the suit houses of plaintiffs in auction sale for the realization of sales tax against defendant No. 3. The defendant Nos. 1 and 2 bought these houses in auction sale and sale certificate was issued on 20-12-1972. It has been pleaded by plaintiffs that since the auction sale has already been set aside by this Court in writ petitions, therefore, the defendant Nos. 1 and 2 are no more the owner of the suit house and they are also bound to pay the rent which they have realized from the tenants.
6. Defendant No. 3 by filing written statement submitted that a suit property is not the property of joint Hindu Family since there was a partition. According to him, the auction sale has already been set aside by this Court.
7. Defendant Nos. 1, 2 and 5 filed their separate written statements and resisted the suit. According to these defendants, defendant No. 3 and plaintiffs are the members of joint Hindu family and the partition never took place between them and in order to save the tax the plaintiffs and defendant No. 3 are carrying on business by different names. It has further been pleaded that the houses which were sold in auction sale were validly sold after following the rules and procedure. They have purchased the suit property in auction sale and they are bona fide purchasers. According to defendants, the story put forth by plaintiffs in regard to partition is concocted. It has also been set forth in the written statement that during the pendency of this suit, the suit houses were got vacated from the tenants and now they are possessing the suit property. The plaintiff cannot ask for the payment of rent. The defendants on these pleadings prayed that the suit be dismissed.
8. The trial Court after framing issues and recording the evidence partly decreed the suit of plaintiffs, directing defendant No. 1 to deliver the possession of house No. 224 situated in Ward No. 15 to plaintiff Babulal of that portion which he had obtained from the tenants; defendant No. 2 shall deliver the possession of house No. 66 of Ward No. 15 to plaintiff Nos. 3 and 4 of the portion which he had obtained from tenants. The trial Court further held that defendant Nos. 1 and 2 are the bona fide purchasers.
9. The aforesaid three appeals have been preferred by different defendants assailing the judgment and decree passed by the trial Court. The plaintiff also submitted cross-objection against that part of decree by which the trial Court has held defendant Nos. 1 and 2, to be bona fide purchasers.
10. In this appeal Shri L S. Baghel, senior advocate appearing for appellant Moolchande (F.A. No. 79/99) and Shri P.R. Bhave, senior advocate appearing for appellant Parasram (F.A. No. 139/99) had argued that the defendants are bona fide purchasers and this has been held by the trial Court. They have also contended that Jeevanlal defendant No. 3 only filed the written statement and he did not appear as witness and failed to examine himself. It has also been put forth by them that once sale certificate has been issued, it cannot be set aside. According to learned Counsel since they are bona fide purchasers, the plaintiff my sue for damages against the State Government. Shri Jaideep Singh, learned Dy. Govt. Advocate appearing for the State adopted the argument of counsel for appellants. Learned Dy. Govt. Advocate has further argued that firm Jeevanlal Durga Prasad defendant No. 3 against whom there was an order of realization of sales tax and the houses were put to auction, did not file any suit and, therefore, the judgment and decree of the trial Court be set aside by dismissing the suit.
11. On the other hand, it has been contended by Shri K.N. Agarwal, senior advocate that the plaintiff filed suit for declaration that the properties of plaintiffs were wrongly sold in auction sale against the realization of sales tax of the firm M/s. Jeevanlal Durga Prasad (defendant No. 3) and defendant Nos. 1 and 2 were knowing that plaintiffs are the owner of the suit property. It has also been put forth by learned Counsel that no issue was framed in this regard whether defendant Nos. 1 and 2 are the bona fide purchasers or not. It has also been argued that defendants were fully aware that the plaintiffs are the owners of the suit property and therefore, it cannot be said that they are the bona fide purchasers. It has been prayed by learned Counsel for plaintiffs that all these three appeals be dismissed and cross-objection filed by plaintiff be allowed.
12. This fact is no more in dispute that in above said writ petitions, this Court quashed the assessment order being wholly without jurisdiction and it was further directed that the petitioner should be reimbursed to the extent of any loss or prejudice caused to it by virtue of such assessment or having been passed against it by the respondents and the petitioner must be put in the same position by the respondents as if there had been no order of assessment passed against him. Thus, when the assessment order itself was found to be wholly without jurisdiction, the auction sale which is outcome of the assessment order cannot be allowed to remain stand. Admittedly, the suit properties were put to auction in order to realize the sales tax, Thus, the suit property was wrongly sold and put to auction. The argument advanced by learned senior counsel for appellant cannot be accepted that despite the assessment order of sales tax was held to be without jurisdiction by this Court and was set-aside, the sale certificate issued in the auction sale cannot be set aside. Indeed, the suit house of plaintiff is for declaration to set aside the sale certificate dated 20-12-1977 being null and void. Learned Counsel for appellants has invited my attention to Order XXI, Rule 90, CPC and has submitted that in order to get the sale set aside any person whose cause are affected by the sale may apply to Court to set-aside the sale on the ground of material irregularity or fraud in publishing or conducting it. It be seen that the property in dispute was not put to auction and has been sold in execution of a decree. It was sold against the realization of the sales tax and the assessment of the sales tax was ultimately held to be without jurisdiction and was set-aside and therefore, the suit properties which were sold and put to auction for the realization of the sales tax, said auction sale, as well as sale certificates, cannot be in any manner, be allowed to remain stand.
13. It has been vehemently contended by learned senior counsel for appellants that the appellants are the bona fide purchasers and therefore, the title which was conferred to them on account of issuance of sales certificate should not be set aside. Considered the argument. It be seen that there is nothing on record nor it has been pointed out by learned Counsel for appellants that how and in what manner appellants can be said to be bona fide purchasers. The tenants were inducted in the said houses. There is nothing on record in order to show that before taking part in the auction sale defendants No. 1 and 2/appellants enquired from those tenants about the title of the suit house. Indeed, the case of plaintiffs is that they are the owner of the suit properties and therefore, properties have been wrongly sold in auction sale. Apart from this, on bare perusal of Exs. P-19 and 21, it is revealed that the house of Smt. Rampyari and Bela Bai, who are plaintiff Nos. 3 and 4, is put to auction. Thus the defendants were quite aware that the property of plaintiff Nos. 3 and 4 is being sold. Apart from this, on bare perusal of Ex. P-7 which is registered sale-deed executed in favour of plaintiff Rampyari and Bela Bai, it is revealed that defendant Moolchand is the attesting witness and therefore, it cannot be said that Moolchand is a bona fide purchaser.
14. It has been argued by Shri P. R. Bhave, learned senior counsel for appellant Parasram (F.A. No. 139/99) that Parasram did not put his signature on Ex. P-7 as attesting witness and therefore, he can be said to be a bona fide purchaser. It be seen that the house which was purchased by Parasram in auction sale, certain tenants were there in that house and if that is the position, he should have asked the tenants in order to enquire who is the landlord and owner of the house. Since this has not been done by him and learned Counsel for appellant failed to point out any evidence in that regard, it cannot be said that Parasram is a bona fide purchaser. The contention of learned senior counsel in that regard is rejected.
15. Several contentions have been raised by learned Counsel for appellants in order to show that the story of partition which has been put forth by plaintiffs is a concocted one and it has been set forth in order to get the sale certificates cancelled. According to me, the said argument is devoid of any substance. Firstly, on the ground that whether there had been any partition in the joint Hindu Family consisting of plaintiffs and defendant No. 3, the present defendant Nos. 1 and 2 cannot question it as they are strangers. Apart from this, there is overwhelming evidence to the effect that oral partition took place on 15-5-1959 and a memorandum acknowledging the partition was reduced in writing vide Ex. P-3 on 18-6-1959. It be seen that defendant Nos. 1 and 2 are total strangers to the family of plaintiffs and defendant No. 3, and if that is the position according to me, they cannot question the partition which had arrived at in their family. The oral partition is permissible under Hindu Law and it is also permissible to reduce the memorandum acknowledging the partition. In this regard the decision of the Supreme Court in the case of Roshan Singh v. Zile Singh, AIR 1988 SC 881 may be seen. The Apex Court in this decision has also held that the memorandum acknowledging the earlier partition is not required to be registered.
16. Apart from this, there is overwhelming evidence that after the partition took place, in the year 1959 an application for mutation was filed on 25-6-1959 by plaintiff Babulal and his statement was recorded on 9-7-1959, copy of which is Ex. P.5 and ultimately vide order dated 22-9-1959 the same was allowed and the name of Babulal was directed to be mutated on the basis of partition. All these things happened in the year 1959 and therefore, there is no merit in the contention of learned Counsel for appellants that the story of partition which has been put forth after the auction sale is concocted one. The defendant Nos. 1 and 2 cannot from any angle be said to be a bona fide purchasers. The trial Court wrongly held these defendants to be bona fide purchasers.
17. In the result, all the three appeals filed by defendants are hereby dismissed. The cross-objection filed by plaintiffs are hereby allowed. The suit of plaintiffs is decreed in toto with costs throughout. Counsel fee Rs. 3000/-, if pre-certified. However, the auction purchasers shall be free to take appropriate steps to recover the auction price with interest against the State Government, if they are so advised. If such steps are taken, the same may be decided in accordance with law.