1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 145/1994 (Gajanand Laxminarayan Mishra VERSUS Rambhabai Amritlal Maheshwari & 23 others) WITH Second Appeal No. 164/1994 (Gajanand Laxminarayan Mishra VERSUS Rambhabai Amritlal Maheshwari & 24 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri D.C. Daga, counsel for the appellant. Shri M.B. Naidu, counsel for the R(i) to (v). CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 27, 2008. Since common questions arise for consideration in these two second appeals and they arise out of the judgment dated 18.09.1993 passed by the first appellate Court, they are being considered together for admission and being decided by this common order. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for possession of the suit property and for mesne profits. It was the case of the plaintiff that the suit house was initially recorded in the name of Virammabai, B. Ramalu, B. Ramaswami and B. Venkatrao in the Municipal Corporation records. According to the plaintiff, since some municipal taxes and other demands were not paid by the owners, the suit house was auctioned by the Municipal Corporation on 28.02.1974 and since the 2 plaintiff was the highest bidder, his bid was accepted on 20.05.1974 and the sale in his favour was confirmed. The plaintiff pleaded that Virramabai, B. Ramalu and B. Ramaswami had died prior to the public auction. Only B. Venkatrao, defendant no.8, was alive at that time. Defendant nos.2 to 7 being the legal heirs of B. Ramaswami were joined as party defendants. It was also pleaded by the plaintiff that some time in the year 1972, a money decree was passed against B. Ramaswami and in a public auction by the civil Court for satisfying the money decree, defendant no.1 Amritlal had purchased the suit house. Since the plaintiff claimed to be the owner of the suit property in pursuance of the public auction dated 28.01.1974 he sought for the possession of the suit property. Defendant no.1 Amritlal filed a written statement and denied the claim of the plaintiff. He claimed that he purchased the suit property in public auction in execution of a decree. According to defendant no.1, he was the exclusive owner of the house. It was then pleaded by the defendant no.1 that the auction dated 28.02.1974 was not validly and legally conducted and the plaintiff did not get a valid title by purchasing the property through the said auction. The defendant no.1 lastly pleaded that no notice was ever issued to the defendants before auctioning the property. 3 The defendant nos.2 to 7 filed a joint written statement. The defendant nos.2 to 7 pleaded that they had 1/3rd share in the suit house and the Municipal Corporation ought to have issued a notice of sale to them. The defendant nos.2 to 7 further pleaded that the sale certificate issued in favour of the plaintiff would not affect their title to 1/3rd share in the suit property. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and held that the plaintiff had succeeded in proving his title over the suit property and the title of defendant no.1 Amritlal stood extinguished. The Court further held that the sale in favour of the plaintiff by the public auction was a valid one and was not void due to the material irregularities in conducting the auction. The trial Court also held that the defendant nos.2 to 7 did not prove that they had 1/3rd share in the suit property. The trial Court, therefore, directed the defendant no.2 to 8 to put the plaintiff in possession of the suit property. An inquiry under Order XX Rule 12 of the Code of Civil Procedure for mesne profits was also directed by the trial Court. The judgment of the trial Court was challenged by the legal heirs of B. Ramaswami and B. Ramalu in a first appeal which was registered as Regular Civil Appeal No.273/1986. Appellant Gajanan also filed appeal bearing Regular civil appeal No.379/1986 against the reduction of the claim for 4 damages. The first appellate Court by the judgment dated 18.09.1993 reversed most of the findings recorded by the trial Court. The first appellate Court held that the sale in favour of plaintiff Gajanan was not valid and he was not entitled to possession of the suit property. The Court further held that the plaintiff was also not entitled to damages and mesne profits. Hence, the first appellate Court allowed the appeal filed by the legal heirs of B. Ramaswami and B. Ramalu and dismissed the appeal filed by the plaintiff. Common judgment passed by the first appellate Court on 18.09.1993 is challenged by the appellant in these second appeals. I have perused both the judgments in detail and I have also considered the submissions made on behalf of the parties. The trial Court had observed,while recording the finding on the propriety of the auction sale in favour of the plaintiff that defendant no.1 Amritlal had not filed any objection to the same and the defendant no.1 as well as the other defendants had also not filed any suit for setting aside the sale in favour of the plaintiff. The trial Court had held that since the taxes and dues on the properties were not paid by B. Venkatrao, the auction sale of the property was conducted. Though the trial Court noted that there was no notice of the auction sale which was actually conducted on 28.02.1974, the trial Court did not record any reason for wiping out these material irregularities. Though 5 the auction sale was to be conducted earlier on 04.02.1974 and the properties were not disposed of by holding auction sale on 04.02.1974, no notice that the auction sale would be thereafter conducted on 21.02.1974 and 28.02.1974 was ever issued or a proclamation to that effect was ever made. In this background, the appellate Court rightly held that neither Amritlal, the defendant no.1, nor the true owners of the property were ever served with a demand notice. Since the record reveals that there was no notice of the auction sale dated 28.02.1974 to anybody, as no proclamation of the auction sale dated 28.02.1974 was made by the Corporation in any newspaper, the appellate Court rightly reversed the findings recorded by the trial Court to hold that the sale in favour of the plaintiff by the public auction was void due to the material irregularities in conducting auction on 28.02.1974. The findings recorded by the first appellate Court on the propriety and correctness of the auction sale are pure findings of facts which are based on a proper appreciation of the material evidence on record. The findings do not give rise to any substantial question of law. Since the plaintiff could not have derived any title to the suit property in pursuance to the auction sale dated 28.02.1974, the appeal filed by the plaintiff against the rejection of his claim for damages was also rightly dismissed by the first appellate Court. Since the plaintiff had not 6 proved his valid title over the suit property, there was no question of granting a decree in an enquiry into mesne profits. For the reasons aforesaid,both the second appeals are dismissed with no order as to costs. JUDGE APTE