JUDGMENT - D.G. DESHPANDE, J.:---The plaintiffs have filed the suit for declaration that the auction sale of the suit property held on 22-6-1977 be declared null and void, and for injunction restraining the defendants from executing the sale deed in favour of the auction purchaser pursuant to the auction sale dated 28-6-1977. 2. The suit property which is a building on a piece of land admeasuring 695 sq. meters near Jogeshwari Railway Station was originally owned by the plaintiffs. Income from the said building was the only source of livelihood of the plaintiffs. That the plaintiffs were in arrears of municipal taxes, therefore the Bombay Municipal Corporation (BMC) advertised the suit property for auction. The plaintiffs had given advertisement and the total charges recoverable by the BMC were about Rs. 38,000/-. The defendant No. 1 gave advertisement of the proposed auction in the local newspapers on 6-6-1977 declaring that the auction of the suit property would take place at 4 p.m. on 20-6-1977 in the office of the Assessor and Collector, K/East Ward, Andheri, Bombay. 3. Plaintiffs thereafter, filed a suit before the City Civil Court Bombay for a declaration that warrant of attachment was bad in law and also for injunction. Plaintiffs also took out a notice of motion wherein the plaintiffs were allowed to pay Rs. 10,000/- towards tax and penalty as first instalment within 15 days. However, notice of motion of the plaintiffs was dismissed. (It was pointed out that plaintiffs could not pay even this amount of Rs. 10,000/- as directed by the Court) 4. According to the plaintiffs on 20-6-1977 the Constituted Attorney of the plaintiffs one Devendra Prasad Singh attended the office of the Assessor and Collector along with three more persons, namely, Mohini B. S. Sambyal, Leela Dutt Sharma and Neelam D. Singh, one of which was the wife of the Constituted Attorney and two were the sisters of the original owner. They made enquiry from Mr. Madiwala, Assessor and Collector about the proposed auction and they also represented to him that they had come to take part in the auction. However, it is their case that Mr. Madiwala asked them to sit outside his office and while they were waiting so, he concluded the sale in favour of defendant No. 2 by practising fraud. 5. Madiwala, Assessor and Collector about the proposed auction and they also represented to him that they had come to take part in the auction. However, it is their case that Mr. Madiwala asked them to sit outside his office and while they were waiting so, he concluded the sale in favour of defendant No. 2 by practising fraud. 5. It is on this ground that the present sale has been challenged, and in addition it is also the contention of the plaintiffs that in the advertisement and in the proclamation of sale description of the property was not given and even though the property was actually admeasuring 695 sq. meters it was shown to be 670 sq. meters and this has resulted in great prejudice to the plaintiffs. Therefore, the present suit. 6. The BMC as well as the auction purchaser strongly denied the claim and contention of the plaintiffs. According to them there was no mis-description of the property in the proclamation of sale or in the advertisement. Secondly, according to them plaintiffs had no proof to show that on actual measurement the suit property comprised of 695 sq. meteres and not 670 sq. meters, that neither the plaintiffs nor their Constituted Attorney, nor three persons named above were present at the time of auction and all this is a concocted story invented by the plaintiffs to challenge the sale. 7. On the basis of these pleadings, following issues were framed by my learned predecessor : ISSUES 1) Whether the plaintiffs prove that suit is maintainable without giving notice under section 527 of the BMC Act, 1888 and not time barred by Law of Limitation under provisions of the said section as contended in para 1 of the written statement ? 2) Whether the plaintiffs prove that the suit is not barred by principles of res-judicata as suit bearing No. 8303 of 1976 has been filed in Bombay City Civil Court for identical reliefs ? 3) Whether the plaintiffs prove that the auction sale gives cause of action to file suit against these defendants as contended in para 2 of written statement ? 4) Whether the plaintiffs prove that the auction sale held on 20-6-1977 was collusive and bad as alleged in paras 6, 7 and 8 of the plaint ? 3) Whether the plaintiffs prove that the auction sale gives cause of action to file suit against these defendants as contended in para 2 of written statement ? 4) Whether the plaintiffs prove that the auction sale held on 20-6-1977 was collusive and bad as alleged in paras 6, 7 and 8 of the plaint ? 5) Whether the plaintiffs prove that the suit for declaration that sale is bad in law is maintainable without challenging the warrant of attachment dated 30-8-1975 ? 6) Whether the plaintiffs prove that they were prevented in taking part in the auction sale ? 7) Whether the plaintiffs prove that the property was of substantive value and sold at paltry amount as alleged in para 9 of the plaint? 8) Whether the plaintiffs prove that the auction sale was vitiated as there was no bidding at all and these defendants stopped bidders as alleged in para 9 of the plaint ? 9) Whether the plaintiffs prove that the auction sale held on 20-6-1977 was not just, proper, equitable or bona fide as contended in para 11 of the plaint? 10) Whether second defendant is bona fide auction purchaser in respect of the property in question ? 11) Whether second defendant has become lawful owner of the property in question in view of issuance of certificate of ownership? 12) Whether the plaintiffs prove that they are entitled to relief asked in the plaint ? 12A) Do the plaintiffs prove that the sale held on 20-6-1977 conducted on the basis of alleged wrong measurement of area of property, in the advertisement, was a material irregularity and negligence, as alleged by the plaintiffs in para 9(a) of the plaint? 12B) Do the plaintiffs prove that defendant No. 1(BMC) was bound to frame regulation for the conduction of the auction sale as per the provisions of BMC Act, and whether the auction sale was ultra vires the provisions of the said Act and hence, not sustainable for the reason as alleged by the plaintiffs in para 9(b) of the plaint ? 12C) Whether the suit is barred by limitation as alleged in para 1 of additional written statement of defendant No. 2 ? 13) What order, what cost ? 8. On the basis of the aforesaid issues, plaintiffs examined one Devendraprasad Vishnuprasad Singh who was the constituted attorney as P.W. 1, Mrs. 12C) Whether the suit is barred by limitation as alleged in para 1 of additional written statement of defendant No. 2 ? 13) What order, what cost ? 8. On the basis of the aforesaid issues, plaintiffs examined one Devendraprasad Vishnuprasad Singh who was the constituted attorney as P.W. 1, Mrs. Mohini Sambyal as P.W. 2 and Mrs. Neelam Singh as P.W. 3. Defendant No. 1 BMC also examined one witness Parasanna Madhusudan Soman in support of their contention that the sale was perfectly in order and that there were no illegalities. 9. After the evidence was over, I heard arguments of all the parties. It was contended by the plaintiffs' Advocate that plaintiffs had proved their case that the auction of the property was a collusive one, that Mr. Madiwala deprived the plaintiffs of their right and the two persons named above or their right to take part in auction by secretly holding the auction and concluding it. Plaintiffs Advocate also relied upon the judgment of this Court reported in A.I.R. 1991 Bombay 341 (Jaikisandas Balchand Pamnani and another v. Municipal Corporation of Greater Bombay and others)1, in support of his contention that if there is material misdescription in the sale proclamation, the sale stands vitiated. He also contended that BMC did not publish the conditions of sale, and that the auction is fraudulently held. It was also contended that the defendants did not examine Madiwala deliberately and therefore adverse inference should be drawn against the defendants for non examination of Madiwala. 10. On the other hand it was contended by the defendants' Advocate that since it was the case of the plaintiffs that Mr. Madiwala was guilty of fraud it was necessary for the plaintiffs to join the said Madiwala in his personal or official capacity. Secondly, it was contended by them that from the conduct of the plaintiffs, that is, revealed by the defendants themselves as well as inability of the plaintiffs to deposit, an amount of Rs. Madiwala was guilty of fraud it was necessary for the plaintiffs to join the said Madiwala in his personal or official capacity. Secondly, it was contended by them that from the conduct of the plaintiffs, that is, revealed by the defendants themselves as well as inability of the plaintiffs to deposit, an amount of Rs. 10,000/- as per the order of the City Civil Court, and the failure of the plaintiffs in their motion before the City Civil Court, and the failure of the plaintiffs to pay the arrears of the BMC before confirmation of the sale are all indicative of falsity of the plaintiffs' claim, that plaintiffs and/or their representatives were present at the time of the auction to participate in the auction and to purchase the property. It was further contended that the record produced by the witness of the plaintiffs clearly show that six persons participated in the auction and similar auctions were held earlier also but they did not fetch the minimum price and all this would show that plaintiffs were not in a position at any point of time to pay dues of the BMC. 11. In addition to the submissions referred to above, it was also contended by Counsel for the plaintiffs that the BMC has not framed any regulations for holding of auctions and therefore in the absence of any regulations the auctions stand vitiated. This contention was refuted by the Advocate for the defendant No. 1 as they produced the necessary regulations. 12. In view of the aforesaid submissions, pleadings and evidence 1 conclude as under : Issue No. 1 : The suit is filed in 1977 and since it is being decided on merits, no finding on issue No. 1 is called for or required. Issue No. 2 : The pleadings of Suit No. 8303 of 1976 were not placed before me nor any submissions were made in this regard and Issue No. 2 also requires no finding. Issue No. 3 : There was an auction sale of the property and plaintiffs claiming to be interested in the property was entitled to file a suit and therefore finding that there was a cause of action to file a suit. Issue No. 3 : There was an auction sale of the property and plaintiffs claiming to be interested in the property was entitled to file a suit and therefore finding that there was a cause of action to file a suit. Issue No. 4 : Plaintiffs has failed to prove that auction sale held on 20-6-1977 was collusive or bad for reasons stated in the plaint and therefore Issues No. 4 is answered in the negative and against the plaintiff. Issue No. 5 : No submissions were made on this issue by any of the Advocate hence Issue No. 5 is not decided. Issue No. 6 : Plaintiffs have failed to prove that they were prevented in taking part in the auction sale and hence Issue No. 6 is answered in negative. Issue No. 7 : Plaintiffs have failed to prove that the property was of substantial value as alleged, hence finding on Issue No. 7 is in the negative. Issue No. 8 : Negative. Issue No. 9 : Negative. Issue No. 10 : Negative. Issue No. 11 : Negative. Issue No. 12 : Negative. Issue No. 12(A) : Negative. Issue No. 12(B) : Negative. Issue No. 12(C) : Negative. Issue No. 13 : As per the final order. REASONS 13. So far as area of the suit property is concerned, plaintiff's witness (P.W. 1) stated that it is 695.05 sq. meters. Plaintiffs tried to prove this fact by producing a plan or map which was marked "X" for identification. But the map was never proved and it was nowhere exhibited. Apart from the map plaintiffs have nothing to prove that the area of the property described in the auction notice and the actual area were different. Further, even if for the sake of argument it is accepted that plan marked 'X' for identification given an area when there is nothing on record to show that the construction was done exactly as per the plan and it was actually 695. 06 sq. meters. Since the burden of this fact was on the plaintiffs, the plaintiffs have miserably failed to prove this aspect on the basis of which auction was challenged. Plaintiffs case is therefore required to be rejected and Issue No. 12-A is to be held against the plaintiffs. 14. 06 sq. meters. Since the burden of this fact was on the plaintiffs, the plaintiffs have miserably failed to prove this aspect on the basis of which auction was challenged. Plaintiffs case is therefore required to be rejected and Issue No. 12-A is to be held against the plaintiffs. 14. So far as allegations of the plaintiffs regarding collusion of the Bombay Municipal Corporation officials and the auction purchasers, there is no evidence whatsoever. The plaintiffs witness P.W. 1 have tried to contend that P.W. 1 was present at the time of auction but he was made to sit outside and therefore he could not take part in the auction. All this evidence is shattered in the cross-examination because plaintiffs (P.W. 1) has admitted that there was failure on the plaintiffs part to pay taxes, that taxes were not paid between 1971 and 77 because of financial difficulty, P.W. 1 denies that plaintiffs were in arrears of taxes from 1-4-1972 to 31-3-1975 and contended that P.W. 1 had receipt for payment during this period, but he has failed to produce the receipts. He admitted that warrant of attachment was served for non payment of taxes, that plaintiffs did not pay amount as they did not have any money. P.W. 1 also admitted that the plaintiffs were permitted to pay the arrears in instalment but did not pay the full amount. Evidence of P.W. 1 clearly shows that the request for postponement of sale were repeatedly accepted but even then the plaintiffs could not make the payment. All this evidence clearly shows that even though the plaintiff were in arrears, and were incapable of paying taxes for financial reasons. In this background the plaintiffs case cannot be accepted that P.W. 1 attended auction sale with a view to take part in the sale and purchase the property. 15. So far as allegations of the plaintiffs regarding collusion between Bombay Municipal Corporation officials and auction purchasers concerned, there is no evidence whatsoever worthy of consideration in that regard. To allege collusion is easy but to prove is very difficult, but no attempts have been made by the plaintiffs to surmount the difficulties and prove their contentions. 15. So far as allegations of the plaintiffs regarding collusion between Bombay Municipal Corporation officials and auction purchasers concerned, there is no evidence whatsoever worthy of consideration in that regard. To allege collusion is easy but to prove is very difficult, but no attempts have been made by the plaintiffs to surmount the difficulties and prove their contentions. Conduct of the plaintiffs from the date of falling in arrears till the auction sale of the property suggest only one thing that is the plaintiffs were never in a position to pay the arrears of tax or to purchase the property, the case in that regard is to be rejected as totally unbelievable. 16. Plaintiffs could not point out any illegality in the auction held because on 20-6-1977 only the first step in auction took place, thereafter the auction purchaser deposited the amount and the sale certificate was issued. During all this period the plaintiffs never offered money actually to the Bombay Municipal Corporation as an attempt to cancel or set aside the sale. The plaintiffs could have by directly paying all the arrears including cost of auction prevailed upon the Bombay Municipal Corporation to cancel the auction. However, in spite of getting all opportunities and notice, plaintiffs could not and did not take any steps in that regard, therefore the sale has to be confirmed in favour of the auction purchaser. 17. Plaintiffs tried to get support to the case from P.W. 2 who is the sister of the plaintiffs No. 1. Her evidence is about her visit to the office of the Bombay Municipal Corporation when auction was to take place on 20-6-1977. However, in the cross-examination the witness totally exposed because she admitted that she had learnt about the auction through news paper. She did not check with the plaintiffs as to why the property was being auctioned. She did not know the reasons why property was to be sold. She had admitted that she was not present in the office of the Assessor and Collector at the time of auction. 18. In addition to the aforesaid contentions, the plaintiffs also tried to contend that the property could have fetched more price. No particulars in this regard have been furnished by the plaintiffs or witnesses and they have failed to show how the property could have fetched more price. 18. In addition to the aforesaid contentions, the plaintiffs also tried to contend that the property could have fetched more price. No particulars in this regard have been furnished by the plaintiffs or witnesses and they have failed to show how the property could have fetched more price. For all these reasons I hold that the plaintiffs have failed to prove on any count. 19. It was also one of the contentions of the plaintiffs that the defendants had not framed regulations for conducting the auction and therefore the sale was ultra vires. However, at the time of argument, Counsel for the Bombay Municipal Corporation produced the necessary rules and regulations and therefore this point was not pressed. 20. For all the aforesaid reasons, suit is dismissed with costs. Suit dismissed. -----