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2011 DIGILAW 810 (MP)

Suresh Kumar v. Mohan Lal

2011-07-25

R.S.JHA

body2011
JUDGMENT Hon'ble Mr. R.S. Jha, J. 1. The appellant/plaintiffs have filed this appeal being aggrieved by the reversing judgment and decree dated 22-7-1994 passed by IIIrd Additional District Judge, Sehore, in Civil Appeal No. 19 of 1991 whereby he has set aside the judgment and decree dated 23-1-1978 passed by Civil Judge Class II, Sehore, in Civil Suit No. 83-A of 1977. 2. This appeal was admitted by this Court by order dated 11-9-1996 on the following substantial questions of law :-- (1) Whether for the grounds urged in the plaint, the impugned sale was null and void ab initio ? (2) Whether the suit of the plaintiffs is barred by limitation ? 3. The brief facts leading to the filing of the present appeal are that Bhanwar Lal, Shiv Narayan and Ranjit Singh were joint owners of Khasra Nos. 43, 44, 45, 46, 54, 55, 309 and 310, total area being 51.30 acres of Village Dhankhedi, Tehsil & District, Sehore. It is stated that Ranjit Singh died sometime in the year 1959-60. 4. The respondent-Authorities of the State undertook auction proceedings on 22-3-63 and sold the aforesaid land for the purposes of recovery of land revenue to one Bhanwar Lal Kasat who subsequently sold the land on 27-5-63 to respondent/defendant Nos. 1 and 2, Mohan Lal and Ram Prasad. The appellant/plaintiffs filed a suit on 6-8-1973 for possession and manse profit in respect of the aforesaid land on the ground that no demand notices, as required by Section 146 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'the Code') were issued to the appellant/plaintiffs, and that the entire auction proceedings were conducted against Ranjit Singh, who, admittedly, at that point of time had already expired without impleading his legal representatives as parties and, therefore, the entire proceedings being void the possession taken from them was contrary to law and, consequently, a prayer was made by the appellant/plaintiffs that their possession on the disputed land be restored and they be given manse profit for the period during which the land was in occupation of the respondent/defendant Nos. 1 and 2. 5. 1 and 2. 5. The suit was opposed by the State as well as the auction purchasers on the ground that there was due notice to the respondents of the auction proceedings and consequently the suit was barred by limitation as the same could have been challenged within the period of one year as prescribed by Article 99 of the Limitation Act. 6. The Trial Court on recording a finding that the sale of the disputed land having been held in contravention of the provisions of Sections 146 and 147 of the Code was null and void and on that count the suit which has been filed for possession was within limitation, and accordingly decreed the same. However, the Appellate Court, on recording a finding to the effect that even if one person, namely, Shiv Narayan in the instant case had obtained a copy of the sale proclamation, it amounted to sufficient notice to all the respondent/ defendants and in such circumstances reversed the judgment and decree of the Trial Court. 7. I have heard the learned Counsel appearing for the parties extensively and carefully scrutinized the record of the case. 8. From a perusal of the record, it is apparent that the State did not adduce any oral or documentary evidence though it was impleaded in the suit and had also filed a written statement. It is also clear from a perusal of the written statement that the State has not stated therein that the notice of demand, which is required to be issued under Section 146 of the Code prior to initiation of proceedings for recovery of arrears of land revenue had been issued to any of the appellant/plaintiffs. The written statement on the contrary states that the proclamation purportedly under Section 147 of the Code was issued by the authorities, a copy of which has been brought or record as Exh. P-10 and was distributed in the shape of pamphlets amongst villagers. It has been stated that as the copy of the pamphlet was served on Shiv Narayan (P.W. 3), who is one of the joint holders and defaulter, it amounted to sufficient notice. P-10 and was distributed in the shape of pamphlets amongst villagers. It has been stated that as the copy of the pamphlet was served on Shiv Narayan (P.W. 3), who is one of the joint holders and defaulter, it amounted to sufficient notice. From a perusal of the record, it is further clear that the entire averments made in the written statement filed by the State only relate to the proclamation issued under Section 147 of the Code except for generally stating that notices were given and at the same time an alternative plea has been taken in the written statement in Paragraph 3 thereof to the effect that even if no notices of the sale of the disputed land were served on all the persons, it would not vitiate the proceedings as Shiv Narayan (P.W. 3) had knowledge of the same. It is also apparent that the fact that Ranjit Singh had died sometime in the year 1959-60, i.e., prior to the date of issuance of the proclamation for sale has been admitted in Paragraph 2 of the written statement. 9. From a perusal of the record what clearly emerges is that the entire proceedings were taken up by the authorities against Bhanwar Lal; Shiv Narayan and Ranjit Singh whereas Ranjit Singh had admittedly died prior to the initiation of the proceedings and his legal representatives were not brought on record. It is also clear that no notice as required by Section 146 of the Code was issued to any of the holders, i.e., Bhanwar Lal, Shiv Narayan or Ranjit Singh. In fact, the Trial Court in Paragraph 13 of the judgment has clearly stated that in spite of Several opportunities being given to the State the revenue record relating to the proceedings was not produced by the authorities to establish that demand notices as required by Section 146 or Section 147 of the Code were ever issued on the land holders including Ranjit Singh and on this basis, the Trial Court has drawn an adverse inference against the respondent/Authorities. 10. It is also an admitted fact that apart from the demand notices the notices required to be issued under Section 146 of the Code the notice of the sale proclamation as required by Section 147 of the Code were also not issued to any of the land holders. 10. It is also an admitted fact that apart from the demand notices the notices required to be issued under Section 146 of the Code the notice of the sale proclamation as required by Section 147 of the Code were also not issued to any of the land holders. In fact, the averment of the respondent/State in its written statement is that "pamphlets" regarding proclamation of sale were distributed, which is not the manner or procedure prescribed by Section 147 of the Code for issuing notice. Before this Court, on the strength of the admission made by Shiv Narayan (P.W. 3), in his statement to the effect that he got a copy of the proclamation within 2-3 days of its distribution, it is contended that sufficient notice had been served on the plaintiff/appellants. In fact, the State Authorities have nowhere made a statement that specific individual notices were issued to any of the appellants on their addresses giving details of the arrears first; by way of a demand notice under Section 146 of the Code mentioning the amount of arrears of land revenue, which was sought to be recovered or in respect of which the sale proceedings were sought to be taken up and secondly by individual notices under Section 147 of the Code, The documents filed by the Authorities also indicate that even in the sale proceedings the Authorities have not mentioned the outstanding amount of land revenue, which was sought to be recovered by taking up the auction proceedings. 11. In view of the aforesaid established facts it is to be seen as to whether the proceedings for recovery initiated by the Authorities without demand notice under Section 146 of the Code are null and void. In the case of Narain Singh Vs. Board of Revenue, 1962 JLJ 523, it has been held that a sale of land for recovery of arrears of land revenue without notice to the land holder is void in the context of the Land Revenue Act, 1917. The aforesaid judgment has been affirmed by a Division Bench of this Court in the case of Premchand Vs. Board of Revenue, 1964 JLJ 363. A similar view has again been taken up by a Division Bench of this Court in the case of Bihari Singh Vs. The aforesaid judgment has been affirmed by a Division Bench of this Court in the case of Premchand Vs. Board of Revenue, 1964 JLJ 363. A similar view has again been taken up by a Division Bench of this Court in the case of Bihari Singh Vs. Chatra and another, 1971 RN 249, wherein it has been held that a sale without notice under Section 146 of the M.P. Land Revenue Code, 1959 is invalid. The same view has been taken up by a Division Bench of this Court in the case of Abdul Ali Vs. D.F.O., Korea, 1964 MPLJ SN 36 This Court in the case of Chandragopal Vs. Bhagwangir and another, 1989 RN 138. where the notice under Section 146 of the Code was defective, has held the sale to be a nullity relying upon several judgments of this Court quoted above as well as the judgment in the case of Surinder Nath Kapoor Vs. Union of India, AIR 1988 SC 1777 , wherein it has been held that a sale without giving opportunity of showing cause to the person affected, is a nullity. In the case of Desh Bandhu Gupta Vs. N.L. Anand & Rajinder Singh. (1994) 1 SCC 131 , while dealing with proceedings under the Code of Civil Procedure, the Supreme Court has held that the requirement in regard to issuance of :he notices is mandatory and has further held that a sale without notice is a nullity. 12. In view of the aforesaid law laid down by the Division Benches of this Court as well as the Supreme Court with which I am respectfully bound, it is hereby held that the sale in the instant case, which was without notice to the appellant/plaintiffs under Section 146 of the Code was null and void. 13. It is pertinent to note that the Division Bench of this Court in the case of Khubchand Vs. Board of Revenue and others, 1973 RN 502, has held that the proceedings, even in cases where the amount sought to be recovered through proclamation for sale is more than the amount or different from the amount mentioned in the notice for sale or what is actually recoverable under the provisions of Section 147 of the Code, is void. In the instant case, admittedly the amount sought to be recovered from the appellant/plaintiffs has in fact not been mentioned in the proclamation. In the instant case, admittedly the amount sought to be recovered from the appellant/plaintiffs has in fact not been mentioned in the proclamation. It is pertinent to mention here that on going through the entire record it becomes evident that at no place the State Authorities in the written statement or in the proclamation have stated as to what was the actual outstanding amount of land revenue which was sought to be recovered under the provisions of the Code and in such circumstances as the proclamation proceedings were initiated without specifying the amount of land revenue, it also suffers from patent illegality as has been held by this Court in the case of Khubchand (supra). Similar view has been taken by the Supreme Court in the case of Parmanand Vs. Ganpatrao, 1963 JLJ 537. 14. In the instant case, it is also noteworthy that the proceedings were initiated against Ranjit Singh who admittedly, had died sometime in the year 1959-60, i.e., prior to initiation of the proceedings for recovery of arrears of land revenue without impleading his legal representatives or issuing any notices to them. A Division Bench of this Court in the case of Madani Devi Vs. State, 1962 RN 70, has held that in cases, where the defaulter dies before the issuance of a sale proclamation, it is mandatory for the authorities to issue notice to his legal representatives and sale proceedings held without such notice are void. In the facts of the present case, as the legal representatives of the deceased Ranjit Singh were not impleaded or noticed, in view of the law laid down by the Division Bench in the aforesaid judgment the proceedings initiated by the respondents are held to be null and void. 15. The next issue arises for consideration is as to whether under the facts and circumstances of the case, when the sale proceedings initiated by the State Authorities have been held to be a nullity, the bar of limitation would be applicable to a challenge to the orders and the suit, as held by the Appellate Court, would be barred under Article 99 of the Limitation Act. This Court need not delve deeply into this issue in view of a decision of the Supreme Court in the case of Md. Murtiza Khan Vs. This Court need not delve deeply into this issue in view of a decision of the Supreme Court in the case of Md. Murtiza Khan Vs. State of M.P. and others, 1966 JLJ 543, wherein it has been held that where the proceedings are a nullity or the Revenue Authorities acted without jurisdiction, the affected person may file a suit for possession and he need not file a suit for setting aside the impugned orders or proceedings of the Revenue Authorities as they are in themselves without jurisdiction and a nullity. 16. In the instant case, as I have held that the entire proceedings for sale of the appellant/plaintiffs' property were a nullity, the bar under Article 99 of the Limitation Act would not apply and it cannot be held that the suit filed by the appellant/plaintiffs would be barred by limitation or that the suit for possession would not lie. Similar view has been taken by this Court in the case of Laxminarayan Vs. Moharsingh and others, 1989 JLJ 271 , wherein it has been held that a sale in respect of the arrears of land revenue held without the issuance of a demand notice under Section 146 of the Land Revenue Code, 1959 is no sale in the eyes of law and in such circumstances, the period of limitation prescribed under Section 99 of the Limitation Act would not apply. This Court in Paragraph 4, by relying upon the aforesaid judgment of the Supreme Court as well as this Court has held in the following terms :-- 4. Although in this Court, an attempt has been made to submit that the decision of the Courts below on the question of limitation is not sustainable inasmuch as Article 99 would apply, that contention must be repelled by authorities abound for the proposition of law accepted by the Courts below. I do not think if it can be disputed that when a "sale" is not conducted fulfilling the requirements of law, that cannot be regarded as a "sale" within the meaning of Article 99. Indeed, a sale could be made for "any payment recoverable" within the meaning of term employed in Article 99, but it has to be established that a notice of demand was made and the sum due had therefore become "recoverable" on the demand not being satisfied. 17. Indeed, a sale could be made for "any payment recoverable" within the meaning of term employed in Article 99, but it has to be established that a notice of demand was made and the sum due had therefore become "recoverable" on the demand not being satisfied. 17. In view of the aforesaid discussion both the questions of law framed in second appeal are answered in favour of the appellant/plaintiffs. It is held that as the sale proceedings initiated by the respondent/State Authorities without issuing demand notice as required under Section 146 of the Code or following the procedure prescribed under Section 147 of the Code are null and void and, therefore, the suit for possession filed by appellant/plaintiffs is not barred by limitation and they are entitled to possession of the land in question. 18. In the result, the judgment and decree dated 22-7-1994 passed by IIIrd Additional District Judge, Sehore, in Civil Appeal No. 19 of 1991 is accordingly set aside and the judgment and decree dated 23-1-1978 passed by Civil Judge Class II, Sehore, in Civil Suit No. 83-A of 1977 is hereby affirmed. The appeal filed by the appellant/plaintiffs stands accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.