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