Holding

An appeal by a single defendant is maintainable despite other co‑defendants’ non‑appeal, and the auction sale certificate was void for contravening Section 206 of the BMC Act, rendering the plaintiff’s title null and the Division Bench’s judgment set aside.

Summary

The Supreme Court allowed the appeal of Bajranglal (appellant) against a Bombay High Court Division Bench judgment that had set aside a Single Judge’s finding that the plaintiff’s title to a property was void. The appellant argued that the Division Bench erred in holding that the auction sale conducted by the Bombay Municipal Corporation (BMC) was valid and that the appeal should be barred by res judicata and the risk of conflicting decrees. The Court held that a dismissal of a later appeal for default does not create res judicata, and Order 41 Rule 4 read with Rule 33 of the CPC permits one defendant to challenge a decree even if other co‑defendants do not appeal. It further affirmed that the sale certificate issued under Section 206 of the BMC Act was illegal, contravened the regulations and therefore conveyed no title, rendering the plaintiff’s claim a nullity. Consequently, the Division Bench’s judgment was set aside and the Single Judge’s decision restored. The appellant was awarded costs.

Issues considered

The maintainability of the appeal in view of alleged res judicata and potential for conflicting decrees.
Whether Order 41 Rule 4 and Rule 33 of the CPC allow an appeal by one defendant when others have not appealed.
The validity of the auction sale and the certificate of sale issued under Section 206 of the Bombay Municipal Corporation Act, 1888.
Whether the plaintiff’s title derived from the sale certificate is a nullity.
The effect of limitation provisions on the defence of nullity of title.
The necessity of impleading the Bombay Municipal Corporation as a party.
The presence of fraud or ultra‑vires conduct in the auction sale.

Legislation cited

Bombay Municipal Corporation Act, 1888s. Section 206
Code of Civil Procedure, 1908s. Order 41 Rule 33, s. Order 41 Rule 4, s. Section 11
Limitation Act, 1963s. Section 3

Subjects

res judicataappealOrder 41 Rule 4Order 41 Rule 33auction saleBombay Municipal Corporation Actnullity of titlelimitationfraudpossession suit

Judgment

BAJARANGLAL SHIVCHANDRAI RUIA A
\'.

SHASHIKANT N. RUIA AND ORS.

MARCH 23, 2004

[S. RAJENDRA BABU, B.N. SRIKRISHNA AND G.P. MATHUR, JJ.] B

Code of Civil Procedure, 1908:

Order ./I Rule ./-Re1·ersal ofdecree-Poirer ofAppellate Court-Appeal
againsl decree filed by one of several defendants-Subsequent appeal filed by C
co-defendant dismissed for default-Effect of-Held: Dismissal of subsequent
appeal would not operate as res judicata-Hence, appeal filed by the first
defendant would not be rendered infi'uctuous on this ground.

Order 20 Rule 12-Decree for possession-Plaintiff derived her title to
suit property on the basis ofsale certificate issued in her favour by M1111icti)(fl D
Corporation-In the suit filed be/are the High Court dejendanr contended that
the sale was a nullity-Single .fudge held that certificate of sale was null and
void contravening S. 206 of the Bombay Municipal Corporation Act, 1888-
But Division Bench held that auction-sale could not be challenged by way of
defence in the suit.filed by the plaintifffor recove1y ofpossession-Correctness E
of-Held: If !he plaintiff's title to suit property was a nullity defendan/ need
not challenge it by way of a subsequenl suit-Defendant could always sci up
nullity of Ii/le as a defence in any proceeding taken against him-If plaintiff
could not prove her lit le the suit mus/ fail nutwithslanding 1ha1 1he defenda/1/
in possession may or may no/ have lille lo 1he suit properly-Hence, Division
Bench erred in inle1fering wilh !he finding of the Single Judge. F

Sec/ion 79-S11i1s by or against (Jovernmenl-Held: As a rule an act of
Sia/e could be questioned by way of a duly consliluied suit-However, if
another person claimed a tiile fi'om the so-called act of State, such a person
could plead nullity of litle as a defence. G
limitation Ac/. 1963:

Sec/ion 3-Bar of limitation-Plea-By defendant-Held: Though period
cf limitation prescribed in li111i1a1io11 Act predudeJ a plaintiff:Ji-0111 hringing
373 H
J
374 SUPREME COURT REPORTS [2004] 3 S.C.R.

A a suit which was barred by limitation, there was no such /imitation as far as 1..-..

any defence was concerned

Municipalities:

Bombay Municipal Corporation Act, 1888:
B
Section 206(6)-Sale ofproperty-Certificate of auction-sale-Issued in
favour of plaintiff-Record showed one J as highest bidder-J did not claim
to be an agent ofplaintiff-Plaintiff claimed for the first time in the plaint that
she paid the entire price of auction-sale-But such averment not substantiated
by evidence-Division Bench held that since J was the employee ofthe plaintiffs
C husband the sale certificate could be in the plaintiffs name and that it conveyed
good title-Correctness of-Held: Certificate of sale issued in the plaintiff's
name is not conclusive of the plaintiffs title-There is no provision in the Act
or Regulations framed thereunder for conclusiveness ofthe certificate ofsale-
Even assuming that such a conclusiveness or presumption was there, it could
D only arise if it was shown that the certificate was issued in accordance with
S. 206 and the Regulations-Reasoning of Division Bench was faulty-Hence,
sale certificate issued in violation of S. 206 was illegal and void

The respondent-plaintiff filed a suit on the original side of the High
Court for recovery of possession of the. suit property. The respondent
E claimed title to suit property on the basis of a certificate of auction-sale
issued in her favour by the Municipal Corporation under Section 206 of
the Bombay Municipal Corporation Act, 1888. A Single Judge dismissed
the suit on the ground that the certificate of sale issued by the Municipal
Corporation was invalid and hence liable to be declared null and void for
contravention of the provisions of Section 206 of the Act. The Single Judge
F also found that while the sale certificate was issued in the name of the
respondent-plaintiff, the Corporation's records did not show the
respondent as the highest bidder nor as a purchaser in auction-sale.
However, the record showed one J, an employee of the respondent's
husband, as the highest bidder. No explanation was given for this
G discrepancy and also J did not claim to be an agent of the plaintiff. The
respondent claimed for the first time in the plaint that she had paid the
entire price of the auction-sale but did not substantiate it by any evidence.
"f .
In appeal, the Division Bench held that as J, the highest bidder, was
in the employment of the respondent's husband, the sale certificate could
H be in the name of the respondent and that it conveyed her good title and
·~

13.S. RUIA v. S.N. RUIA 375

,,-J
allowed the suit. The Division Bench also.held that the present appellant- A
defendant No. 8 had lost his right to file a suit for avoiding the auction-
,. sale as· it was barred by time.

Being aggrieved the present appellant-defendant No. 8 filed SLP and
thereafter defendant No. 5 also filed SLP. The present appellant was
gr~nted leave and his SLP was converted into a Civil Appeal. But the SLP B
filed by defendant No. 5 was dismissed for want of compliance with the
office report.

• On behalf of the respondents it was contended that inasmuch as the
appeal filed by defendant No. 5 was dismissed by this Court for non-
c
prosecution, the judgment of the Division Bench operated as res judicata;
that the judgment and decree had become final against appellant-
defendant No. 8 and all other defendants in the original suit; that even
otherwise the appeal should be dismissed as it might give rise to conflicting
decrees; that if the present appeal is allowed, resulting in setting aside the
decree or making any modification thereof, it would result in the D
anomalous situation of there being conflicting decrees between the same
parties, arising out of same cause of action.
";I"
Allowing the appeal, the Court

HELD: I. It is not possible to accept that the principle of resjudicata E
will apply to bar the appeal. An order dismissing a subsequent appeal for
default cannot operate as res judicata in respect of an earlier appeal.
Neither Section 11 of the Code of Civil Procedure, 1908 nor any principle
derivable therefrom, would bar the appeal as contended by the respondent.
1388-D, H; 389-AI F
~ 2. Where there are several defendants, who are equally aggrieved
by a decree oil a ground common to all of them, and only one of them
challenges the decree by an appeal in his own right, the fact that the other
defendants do not choose to challenge the decree or that they have lost
their right to challenge the decree, cannot render the appeal of the G
appealing defendant infructuous on this ground. In fact, Rule 4 and Rule
33 of Order 41 of the CPC are enacted to deal with such a situation.
'-
1389-D-FI
I 't
Narhari v. Shankar, 119501 SCR 754, Karan Singh Sobti v. Shri Pratap
Chand, I 19641 4 SCR 647, Pandit Shri Chand v. Mis. Jagdish Parshad Kishan H
376 SUPREME COURT REPORTS [2004] 3 S.C.R.

A Chand, 119661 3 SCR 451, Ratanlal Shah v. Firm Lalmandas Chhadamma/al,
1196912 SCC 70, Mahabir Prasadv. Jage Ram, 1197111 SCC 265, Govindan
v. Subramaniam, 1200019 SCC 510, Harihar Prasad Singh v. Balmiki Prasad
Singh, 1197511SCC212, State of Punjab v. Naathu Rom, 1196212 SCR 636,
Banarasi v. Ramphal, 120031 9 SCC 606, Chandramohan Ramchandra Patil,
B v. Bapu Koyappa Patil, 120031 3 SCC 552, K. Muthuswami Gouonder v. N.
Pa/aniappa Gounder, 1199817SCC327, Panna/al v. State of Bombay, 119641
I SCR 980 and Managing Director v. K. Ramachandra Naidu, (199416 SCC
339, relied on. ' .
Badri Narayan Singh v. Kamdeo Prasad Singh, (19621 3 SCR 759 and
••
C Premier Tyres Ltd. v. Kera/a State Road Transport Corporation, 11993) Supp.
2 sec 146, held inapplicable.

Mst. lachhmi v. Mt. Bhulli, AIR (1927) Lah 289, Rameshwar Prasad,
v. Shyam Bihari/a/, 119641 3 SCR 549 and Nirmala Bala Chose v. Ba/ai
Chand Chose, 1196513 SCR 550, referred to.
D
Mahant Dhangir v. Madan Mohan, 11987) Supp. SCC 528, cited.

3. The 5th respondent has been served, but has chosen to remain
absent. The fact that the 5th respondent's own appeal failed for non-
complianc·e with the office objections cannot have the consequence of
E defeating the appeal of the present appellant. Order 41 Rule 4 read with
Rule 33 CPC invests this Court with sufficient power to entertain the
appeal of the present appellant and to make any appropriate order
thereupon consonant with justice, equity and good conscience. 1398-F-HI

4. If the title claimed by the plaintiff was a nullity and wholly void,
F there was no need for any of the defendants including the appellant to
challenge it by way of a substantive suit. They could always set up nullity
of title as a defence in any proceeding taken against them based upon such
title. If, in fact, the .sale was a nullity, it was non est in the eye of law and
all that the defen.dant had to do was point this out. 1401-B-CJ
G
Ajudh Raz v. Moti Sia Mussadi, 119911 3 SCC 136, Vidyadhar v.
Manikrao, 119991 3 SCC 573, relied on.

Abdulla Mian v. Government of Bombay, (1942) 44 Born LR 577 (Born),
approved.
H 5. Here, the plaintifrs suit is for ejection of the defendant and for

•
B.S. RUIA v. S.N. RUIA 377
possession of the suit property. She must succeed or fail on the title that A
.Al she establishes. If she cannot succeed in proving her title, the suit must
fail notwithstanding that the defendant in possession may or may not have
title to the property. 1401-H; 402-AI

Braham Nand Puri v. Neki Puri, I19651 2 SCR 233, relied on.

6.1. The appellant had sufficiently pleaded in his written statement
B
the defects in the title of the plaintiff and it was, therefore, open for the
Single Judge to go into this question and decide if the plaintiff had good
title or not. The Division Bench, therefore, erred in interfering with the
finding of the Single Judge on this ground. On the facts, the Single Judge
has elaborately discussed the evidence and had come to a finding with c
which it is difficult to disagree. It is not possible to share the view of the
Division Bench that the defects in title pleaded and found by the Single
Judge were mere irregularities in conducting the sale, which could not
have been challenged collaterally. The finding of the Single Judge that the
plaintifPs title was invalid and non est for contravention of the provisions
of Section 206 of the Bombay Municipal Corporation Act, 1888 and the
D
Regulations made thereunder is fully justified and brooked no interference
in appeal. 1402-B-D]
-r-
Mohan Wahi v. CIT, 12001! 4 SCC 362, relied on.

Narhari Mohanthy, AIR (1963) Ori 186, Chilli Perwnal Pillai v. E
Devasahaym, (1956) TC 181 (FB) and Kishore Singh v. Tej, AIR (1967) MP
120, held inapplicable.

M.N. Dollar v. S.K. Limaye, AIR (1921) Born 257 and V.D. Deshpande,
v. K.D. Ku/karnik, AIR (1976) Born 190, approved.

6.2. As a rule, it may be that an act of the State can be questioned
F
~x
in a Municipal Court by way of a duly constituted suit. However, if another
person claims a title from a so-called act of the State, there is no reason
why the defendant cannot plead the nullity of title. 1402-D-El

Nawab Umiad Ally Khan v. Mohumdee Begum, (1868) Sutherland WR
Vol. X 25 (PC), referred to.
G

6.3. The defence raised by the appellant was quite comprehensive.
He had challenged the plai.ntifrs title on the basis of the alleged auction
ly
sale as a nullity on the grounds of ultra vires, lack of jurisdiction, non-
service of demand notice on all heirs/co-owners, breach of mandatory
provisions of law and also perpetration of fraud, the particulars of which
H
,J,

.J78 SUPREME COURT REPORTS f2004] 3 S.C.R.

A were reiterated and adopted from the suit of defendant No. 2, as well as
the defendant's written statement in the plaintifPs suit. 1403-C-DI
'-..

7.1. The finding of the Division Bench in the impugned judgment that
the action of the Municipal Corporation in holding the auction sale could.
not have been challenged by the appellant after withdrawal of the suit by
B defendant No. 2 and that the right to challenge the auction-sale would not
subsist in the appellant by way of a defence in the suit filed by the plaintiff
auction-purchaser for recovery of possession, is erroneous. 1405-D-Ef

7.2. The view of the Division Bench that as the appellant could not ~

have instituted a suit for challenging the auction-sale and the sale
c certificate, equally, he could not raise a defence to the suit and plead that
the auction-sale was invalid is also wholly erroneous. 1405-G-HI

8. Although the period of limitation prescribed in the Limitation Act,
1963, precludes a plaintiff from bringing a suit, which is barred by
limitation, as far as any defence is concerned, there is no such limitation.
D
1400-F-GI

9. It is not possible to accept the reasoning of the Division Bench that --'\
merely because the certificate of sale had been issued in the name of the
plaintiff, it was conclusive of the title of the plaintiff and could not be
E impeached and that it was for the defendants to defend their possession.
In the first place, there is no provision in the BMC Act or Regulations for
conclusiveness of the certificate of sale. Secondly, the analogy drawn by
the Division Bench with a court-sale is wholly misconceived. Thirdly, even
assuming that such a conclusiveness or presumption of sale is there, it can
only arise if it is shown that the certificate is issued strictly in accordance
F with Section 206 of the BMC Act and the Regulations, which was not the
case here. As there was no compliance with the law, the certificate of sale ),' >
conveyed no good title to the plaintiff. The sale was ab initio void and that
the certificate of title was bad and null and void for complete violation of
the provisions of the BMC Act and Regulations thereunder. 1411-8-DI
G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5293 of 1993.

From the Judgment and Order dated 2/5.4.93 of the Bombay High
Court in A.No. 213 of 1989. 'f" '

Sunil Gupta, Sunil Dogra, Ms. Sayali Phathak for Mis. Suresh A. Shroff
H
B.S. RUIA v. S.N. RUIA ISRIKRISHNA. J.] 379
& Co., for the Appellant. A
Bhasker P. Gupta, Asheem Mehotra, Joseph Rana, Ms. Shruti Chaudhary,
Sanjay Khaitan and Suman J. Khaitan for the Respondents.

The Judgment of the Court was delivered by
SRI KRISHNA, J. This appeal is directed against the judgment of the B
Division Bench of the Bombay High Court granting a decree for the relief of
possession of the suit property together with a direction for inquiry into
mesne profits, by reversing the judgment of the single Judge who had dismissed
1,1 the original suit.

Facts c
Two brothers, Shivchandrai and Ramvallabh, purchased a plot of land
measuring I 063 sq. metres at Malviya Road, Ville Parle, Bombay in the year
1928. Haribux was the third brother, whose son was Nand Kishore and who
in turn had a son by name Sh ash ikant.
D
The family tree of the contending parties is as under :
GENEALOGY
I
I

Shivchandrai Ramvallabh Haribux E
(D 7.6.71) (D 1939)
=Rukmanibai (04) = Durgabai Nandkishore
(D 25.12.87) (D 1990) (D ,1969)
Mahavirprasad+( I daughter) =(Chandrakala)
(D 30.6.89) I F
.'X
I
I
I
I I I
(3 (Kai lash (Shyamsunder) (Ramprasad) Chandra Bajranglal I G
daughters) Chand I Prakash I
(wife:Satyavati) I
r-----~------r---
Shashikant Ravikant (6 daughters)
(D = died) H
380 SUPREME COURT REPORTS [2004] 3 S.C.R.

A In 1931. Shivchandrai and Ramvallabh constructed a building known
as 'Hari Niwas' on the said land. The building comprised a ground floor, two
upper floors and several separate out-houses, sheds and garages. In all, there
were five separate structures having 5 different Municipal Ward and Street
numbers, namely, 781 (I), (2), (3), (4) and (5). The Bombay Municipal
Corporation (hereinafter "BMC") used to issue separate property tax bills in
B respect of these five demarcated properties. The families of Shivchandrai and
Ramvallabh were occupying Hari Niwas as their family house. Shivchandrai's
family expanded in due course of time and consisted of his wife Rukmanibai,
three daughters and six sons. Ramvallabh's family consisted of his wife
f1
Durgabai; one daughter and his son Mahavirprasad. Satyavati, the plaintiff in
C the suit, \vhich has given rise to the present appeal, is the wife of Ramprasad
who is one of the sons of Shivchandrai.

Sometime in 1933, Bajranglal, the appellant, was born to Shivchandrai
in Hari Niwas itself. ln 1939 Ramvallabh died leaving behind his wife
Durgabai, one daughter and son Mahavirprasad. In 1962, one of the six sons
D of Shivchandrai, namely, Chandra Prakash, shifted his residence to Bandra
and has been living separately. Shashikant with his father Nandkishore moved
out to Madras and settled there.

In 1964, Shivchandrai also moved over to Madras to settle with his
nephew Nandkishore. Until his departure to Madras, Shivchandrai was canying
E on a business in partnership with Mahavir Prasad in a firm known as "Gorakh
Ram Golak Chand" in Bombay. The office of the said firm was situated at
Choksi Chamber, Zaveri Bazar. Bombay. The partnership employed an
employee by name Janardhan Dhuri. The property tax in respect of Hari
Niwas building used to be paid by the said partnership firm.
F After Shivchandrai's going away to Madras, Mahavirprasad and
Ramprasad started attending to the management of the property and payment
of municipal taxes upon receipt of the municipal bills. Janardan Dhuri being
a long standing employee of the firm used to assist them in this work and this
was being done under arrangement with Shivchandrai.
G
In 1964 Kailashchand also shifted his residence to Juhu, Ville Parle,
Bombay. In 1965, Shyamsundar shifted his residence to Ajmal Road, Bombay.
In 1968 Mahavirprasad shifted his residence to Jethwa Niwas, Ville Parle,
Bombay. In 1969, Ramprasad shifted his residence to Juhu Scheme, Ville Y •
Parle, Bombay.
H
B.S. RUIA v. S.N. RUIA fSRIKRISllNA . .I.] 381

~ Despite shifting of his residence, Ramprasad continued to be in A
possession of the portion of the ground floor of Hari Niwas and Bajranglal
remained in possession of the second floor and continued to live there.
Shashikant, Mahavirprasad, Rukmanibai and two other sons of Shivchandrai
continued to retain possession of different portions of Hari Niwas.

On 22.11.1968, the Commissioner of the BMC issued a Warrant of B
Attachment in the names of Shivchandrai and Ramvallabh for recovery of a
sum of Rs. 5972.52 (total of 5 bills issued in respect of structures of Hari
\J Niwas) as property tax for the period from 1.4.1963 to 31.3.1968. On
23 .12.1968, a sum of Rs. 2250 was paid towards property tax and some
dispute was raised with regard to the balance. On 14.7.1969, the Municipal C
Corporation decided to auction the suit property and fixed a reserve bid for
the auction sale at Rs.30,600. It was by this time revealed that one of the
persons in whose .name the warrant of attachment has· been issued, namely,
Ramvallabh, had already died. Hence, the warrant of attachment was cancelled
on 11.9.1969.
D
In 1969-70, Janardan Dhuri joined the sole proprietorship concern of
Ramprasad with trading name "Gorakh Ram Haribux", which had its office
on the ground floor of Hari Niwas. As an employee of this concern he
continued to attend to the job of payment of municipal taxes in respect of
Hari Niwas. The municipal bills were received either by Janardan Dhuri or E
Mahavirprasad.

On 4.10.1969, a warrant of attachment in the names of Shivchandrai
and Mahavirprasad was issued for realisation of a sum of R.5996.29 towards
municipal taxes for the period 1.10.1965 to 31.3.1969. However, on this
occasion no reserve· bid was fixed by the Municipal Commissioner. F
On 17.11.1969, the orders pursuant to the warrant of attachment were
sent by the concerned officers of the BMC to Mahavirprasad at his address
at Jethwa Niwas, Bombay and also to Shivchandrai at his address both at
Madras and Zaveri.Bazar, Bombay. G
On 29th/30th December, 1969 Shivchandrai and Mahavirprasad
respectively replied to the BMC objecting to the sums demanded on the
ground that their appeals with regard to increase in rateable value to which
they had objected were pending. On 6.1.1970, the BMC informed
Mahavirprasad that the auction sale would be held on 12.1.1970 if t)le dues H
382 SUPREME COURT REPORTS 12004] 3 S.C.R.

A demanded were not paid before I0.1.1970. On 12.1.1970, Shivchandrai and \....
Mahavirprasad paid a sum of Rs.4073.64 as against Rs.5996.29 demanded
under the warrant of attachment and agreed to pay the balance later.
Consequently, the proposed auction sale was cancelled.

On 25.6.1970, a letter of demand was sent by the BMC only in the
B name of Shivchandrai demanding balance amount due under the warrant of
attachment (Rs.5996.29 - 4073.64 = Rs.1922.65) and new taxes for the period
1.4.69 to 31.9.1970 equal to Rs.2593.56, in all making a total of Rs.4516.21.
No costs were specified, quantified or demanded by this letter-cum-bill. ~'

C On 3.8.1970, both Shivchandrai and Mahavirprasad sent a reminder to
the BMC to send a final statement of account to enable them to make the
necessary payment of taxes and requested that the property not be auctioned
in the meantime. On 4.8.1970, the auction sale, which was scheduled to be
held, was adjourned sine die on the ground that there was no bidder and a
new date of auction was fixed as 26.11.1970.
D
On 19.10.1970, the BMC replied to letters dated 3.8.1970 of
Shivchandrai and Mahavirprasad reiterating the old dues under the warrant of
attachment as well as the new taxes due, without specifying any amount of
costs or giving the final statement of account as demanded by them in their
E letters. By this letter, the BMC threatened to sell the property in exercise of
its power under section 206 of the BMC Act.

On 26.11.1970, Shivchandrai and Mahavirprasad paid a lumpsum
amount of Rs. 3500 towards the dues. Although the balance of taxes due
under the earlier warrant of attachment was only Rs. 1922.65 (Rs. 5996.29
F - 4073.64), an additional amount of Rs. 1577.35 was paid by them. Hence,
the auction sale fixed was cancelled.

Shivchandrai died in Madras on 7.6.1971. On 9.6.197 i the BMC
addressed a letter in the sole name of Shivchandrai (who had already died on
G 7.6.71) without addressing any letter to Mahavirprasad or any other person
on his behalf. In this letter the Corporation adjusted the amount of Rs. 7573.64
paid (Rs. 4073.64 + 3500) as against the amount of Rs.5996.29 demanded
under the warrant of attachment. For the first time, the Corporation specified
the costs at Rs.3299.40, an amount of Rs.1722.05 towards costs of proceedings
and further soecified that an amount of fresh tax of Rs.3470.08 for the period
H 1.4.1969 to 31.3.1971 was due, though it did not form part of the warrant of
B.S. RUIA v. S.N. RUii\ [SRIKRISHNA . .I.] 383
attachment. In this fashion, the Corporation, for the first time, worked out the A
dues of Rs.12765.77 and demanded an amount of Rs.5192 (Rs. 12765.77 -
7573.64) as still due and payable. Since the notice of the Municipal Corporation
dated 9.6.1971 had been addressed in the name of a dead person, it was
returned unserved.

On 8.9.1971, the concerned officer of the BMC sent a proposal for B
sanction of auction sale of the suit property towards the demanded sum of
Rs.5192.13 as total dues. This proposal was forwarded to the Municipal
Commissioner, though at this time no reserve bid was fixed. On 30.9.1971
a11d 2.10.1971 the concerned officials of the Municipal Corporation were
directed by the Assistant Assessor and Collector to give notice of the auction C
sale by pasting Notices on the suit premises in the presence of two independent
witnesses, preferably tenants. The Municipal Corporation claims to have pasted
such notices without the presence of any independent witness as directed.

On 5.10.1971, Mahavirprasad learned about the auction sale and wrote
to the Municipal Corporation that as Shivchandrai had died on 7.6.1971, the D
demand notice should be addressed to all the co-owners of the property and
in the meantime the auction sale should not be held. This letter was received
by the Superintendent 'K' Ward, S.D. Madiwala, and the Assessment
Department of the Municipal Corporation on 6.10.1971 and 7.10.1971
respectively.
F
On 12.7.1972, Bajranglal, Mahavirprasad and others received a telegram
from Satyavati (the plaintiff) for immediate handing over of possession of the
suit property to her alleging "that she had become sole owner of the property
at the auction sale held by the Municipal Corporation on 7.10.1971. On
15.7.1972, Mahavirprasad sent a legal notice to the Municipal Corporation
F
and co Satyavati denying that she had become sole owner of the property in
question.

On 15. 7.1972, Suit No.118173 was filed by Satyavati for delivery of the
possession of property. The parties to the suit were as under:-
Plaintiff: Smt. Satyavati R. Ruia G
Defendant : No.1 Shashikant Nandkishore Ruia
No.2 Mahavirprasad Ramvallabh Ruia
I~
No.3 Kailashchand Shivchandrai Ruia
No.4 Smc. Rukmanibai Shivchandrai Ruia H
384 SUPREME COURT REPORTS 12004] 3 S.C.R.

A No.5 Shyamsunder Shivchandrai Ruia
No.6 Ramprasad Shivchandrai Ruia
No.7 Chandraparkash Shivchandrai Ruia
No.8 Bajranglal Shivchandrai Ruia
B ••
In this suit it was claimed that Ramprasad (D-6) had already handed
over possession to the plaintiff and it was alleged that he was the only
defendant continuing in actual occupation of Hari Niwas while the possession
of all other defendants was said to be merely formal.

C This suit was initially filed in a city civil court, but was returned by that
court due to under-valuation and refiled on the original side of the Bombay
High Court.

On 2.10.1972 Suit No. 218/73 was filed on the original side of the
Bombay High court by Mahavirprasad and his mother Durgabai challenging
D (I) the auction sale alleged to have taken place on 7.10.1971 and (2) the
. certificate of sale dated 14.1.1972 alleged to have been issued therein to Smt.
Satyawati, and seeking a declaration that Smt. Satyavati was not the sole
owner of suit property but that Mahavirprasad and Durgabai were also co-
owners of the suit property (i.e. Hari Niwas).

E On 4.9.1973, Mahavirprasad filed his written statement contesting the
Suit No.118/73 on various grounds challenging the validity of the sale and
the plaintiffs title. He also detailed several pa11iculars of fraud vitiating the
sale and pleaded that the suit of the plaintiff Satyavati was bad for non-
joinder of the Municipal Corporation and prayed for dismissal thereof. On
18.9.1973 Bajranglal (D-8) Shyamsunder (D-5) and I<ailashchand (D-3) filed
F their respective individual written statements contesting the Suit No.118173
filed by the plaintiff Satyavati. Bajranglal, in particular, defended the suit by
contending that the sale was a nullity, as it was ultra vires the legal provisions
and on the ground of lack of jurisdiction, non-service of demand notice on
all the heirs and co-owners, irregularities and breach of law and fraud.
G Referring to the pleas and particulars of fraud stated by Mahavirprasad in his
Suit No.218/73, as well as Mahavirprasad's written statement filed in Suit
No.118173, Bajranglal adopted the pleas raised therein. He also contended
that the Bombay Municipal Corporation was a necessary party and the suit
was bad for non-joinder of a necessary party.

H Sometime in 1973-74, Ramprasad closed his office which was situated
B.S. RUIA v. S.N. RUIA [SRIKRISHNA, .I.] 385
,.,-.' in Hari Niwas. Bajranglal continued to have physical occupation of the suit A
property ever since then and continues to remain in occupation till date.
,
On 15.7.1975, Satyavati filed a written statement contesting
Mahavirprasad's Suit No.218/73. On 24.7.1984,.the BMC filed its written
statement contesting Mahavirprasad' s suit No.218/73.
B
On 9.9.1985, Bajranglal filed his written statement supporting fully
Mahavirprasad's Suit No.218/73 challenging the sale of C'uit property to
Satyavati. On 9.9.1985 Mahavirprasad adduced oral evidence in his suit
No.218/73 before the learned single Judge. His cross-examination, however,
remained incomplete and was postponed to the next day. On 10.9.1985, C
Mahavirprasad suddenly moved the learned single Judge (Pendse, J) for
withdrawal of his suit and this prayer was allowed by the learned single
Judge. Counsel for the defendant Bajranglal made a request that he be
transposed as plaintiff in Suit No. 218173 to enable him to prosecute the suit,
which had originally been filed by Mahavirprasad. This request was, however,
rejected and the permission sought was declined by the learned single Judge. D
In his order the learned single Judge held that this request was hit by !aches
and that a substaniial right had accrued to the plaintiff on account of the
property in auction, which could not be defeated by belated transposition of
Bajranglal in the place of original plaintiff Mahavirprasad in Suit No.118/73.
Bajranglal filed Appeal No. 842/85 challenging the order of Pendse, J.
declining the request for transposition. This appeal was dismissed on 21.1.1987 E
by a Division Bench of the High Court holding that Bajranglal's right to
institute a suit was an independent separate remedy for claiming the same
relief against the plaintiff as had been claimed in Suit No. 218173, and that,
since this right was Jost, Bajranglal could not be permitted to get over the
!aches and to subvert the period of limitation by allowing his application for F
transposition in Mahavirprasad's Suit No. 218/73.

On 25.12.1987, Rukmanibai (D-4) died while she was living in Hari
Niwas.

On 28.6.1988, during the trial of Suit No.118173, the learned single G
Judge, (Suresh, J.) proposed to implead the BMC as a party to the suit. This
proposal was vehemently opposed by the plaintiff and due to the opposition
the learned single Judge did not press the proposal. The learned single Judge,
however, permitted the parties to lead evidence with regard to the validity of
the sale made by the BMC. The counsel for the plaintiff sought and was
granted adjournment for putting his client Satyavati in the box as witness for H
386 SUPREME COURT REPORTS J20041 3 S.C.R.

A examination on 29.6.1988. However. on that date the plaintiff did not appear ~
as witness and adjournment was sought on medical grounds. Despite two
more adjournments granted, the plaintiff did not appear as a witness, nor was ~

any other evidence Jed by the plaintiff to support the sale. On 14.7.1988 the
learned single Judge directed the BMC to produce its records with regard· to
the auction sale of Hari N iwas. On 28. 7.1988 counsel for plaintiff stated that
B he did not desire to examine the plaintiff as a witness. On 3.8.1988 the
learned single Judge (Suresh ,J.) ordered the Municipal Corporation to produce
the complete records connected with the sale. On 9.8.1988, in response to a
witness summons issued on behalf of Bajranglal, one S.D. Madiwala, f!
Superintendent 'K' Ward appeared as a witness (DW 2) and stated in his
c deposition that he had brought the entire records and that there was no other
file connecte•a with the sale of Hari Niwas. On 25.8.1988, the learned single
Judge (Suresh, J.) delivered judgment dismissing Suit No.118173 recording
detailed findings that the sale and alleged title claimed by the plaintiff were
illegal, null and void and non est on various grounds. The plaintiff Satyavati
filed an appeal No.213/88 against the judgment on 5.10.1988.
D
On 21.1.1991, this Court dismissed Special Leave Petition No.1154 of
1988 filed by Bajranglal. challenging the order of the Division Bench of the
High Court in the matter of transposition in plaintiffs Suit No. 218173.

On 2/5.4.1993, a Division Bench of the High Court headed by Pendse,
E J. allowed plaintiffs appeal No.213/88, set aside the judgment of Suresh, J.
and decreed the plaintiffs suit for possession against Bajranglal and others.
The application for Speaking to the Minutes by Bajranglal was not entertained
by the Division Bench.

On 27.5.93, S.L.P. No.8425 of 1993 was moved by Bajranglal against
F
the judgment of the Division Bench and an interim stay was granted by this
K
Court. On 4.10.93, leave was granted and the S.L.P was converted into Civil
Appeal No.5293/93. Qn 17.12.1993, Shyamsunder (D 5) also filed S.L.P.(C)
No.18492/93 against the Judgment of the Division Bench dated 2/5.4.1993.
Special leave and interim stay was granted and this Court directed that the
G said matter be tagged with the present appeal. On 18.8.1998, Bajranglal filed
Writ Petition No.2540/98 before Bombay High Court for quashing the sale
made by the BMC in favour of the plaintiff after disclosing the fact of
pendency of the present appeal before this Court. The said writ petition was
admitted on 24.12.1998 by the High Court and is pending before the High
,, •
Court.
H
B.S. RUIA v. S.N. RUIA [SRI KRISHNA . .I.] 387
On 15.1.2001 Shyamsunder (D 5)'s appeal No.7490/93 was dismissed A
for default in compliance with the office report dated 16.11.2000.

These are the material facts culled out from the record of the present
appeal. The following chart will.indicate the array of parties in this appeal:-
In Present As Before Division In suit
B
Appeal Bench in "~peal no. 218/73
No. 213/89
Bajranglal Appellant R-8 D-8
r;
I Shivchandrai Ruia
Shashikant R-1 R-1 D-1
Nandkishore Ruia
c
Mahavirprasad R-2 R-2 D-2
Ramvallabh Ruia
Kailashchand R-3 R-3 D-3
Shivchandrai Ruia
D
Smt. Rukmanibai R-4 R-4 D-4
Shivchandrai Ruia
Shyamsunder • R-5 R-5 D,5
Shivchandrai Ruia
Ramprasad R-6 R-6 D-6 E
Sh ivchandrai Ruia
Chandraparkash R-7 R-7 D-7
Shivchandrai Ruia
Smt. Satyavati R-8 Appellant Plaintiff
R. Ruia F
Maintainability of the present appeal

(A) Res Judicata

At the outset, the respondents contend that the present appeal is not G
maintainable and that, if maintainable, propriety demands that it should be
dismissed as otherwise it may give rise to conflicting decrees in the same
cause of action.

The present appeal is only at the instance of the sole-appellant Bajranglal,
who was Defendant No.8 in the original suit filed by the Respondent No. 8 H
388 SUPREME COURT REPORTS [2004] 3 S.C.R.

A (original plaintiff). The decree made by the High Court qua other respondents
(original defendants) has attained finality since defendants J-4, 6 and 7 in
that suit did not challenge the judgment dated 2/5.4.93 made by the Division
Bench of the Bombay High Court and the consequent decree. The original
defendants I, 2 and 7 did not participate in the proceedings before the High
Court and the suit was contested only by defendant no.5 Shyamsunder and
B defendant no.8 Bajaranglal (the present appellant). Respondents contend that
inasmuch as the appeal filed by Shyamsunder, original defendant no.5, being
C.A. No.7490/93 was dismissed by this Court on 15th January, 200 I for non
prosecution, the judgment of the Division Bench of the Bombay High Court
operates as res-judicata. It is urged that the judgment and decree has become
C final as against Bajaranglal and all other defendants in the original suit. Even
otherwise, it is urged that the present appeal must be dismissed as otherwise
it may give rise to conflicting decrees.

It is not possible to accept that the principle of res-judicata will apply
to bar the appeal. Section 11 of the CPC would bar the Court from trying any
D suit or issue in which the matter "directly and substantially in issue" between
the same parties or between the parties under whom they or any of them
.
claim, litigating under the same title in a Court competent to try such
subsequent suit or suit in which such issue has been subsequently raised, has
been "heard and finally decided by such Court". In the present case, Bajaranglal
E and Shyamsunder were defendants in the Original Suit No. 118 of 1973. The
suit was dismissed and the plaintiffSatyavati carried an appeal to the Division
Bench. In the appeal, both Bajranglal and Shyamsunder were respondents.
The Division Bench, reversed the Single Judge's judgment and decreed the
suit by its judgment. As the respondents in the appeal before the Division
Bench both Bajranglal and Shyamsunder were aggrieved by the decree against
F them. The present appellant Bajranglal filed SLP No. 8425/93 on 27.5.1993.
while Shyamsundar .filed his appeal No. SLP 18492/93 on 17.12.1993.

Leave was granted in Bajranglal's appeal on 4. 10.1993 while leave was
granted in Shyamsundar's case on 17.12.1993. Subsequently, Bajranglal's
appeal was numbered as Civil Appeal No.5293 while Shyamsundar's appeal
G was numbered as Civil Appeal No.7490/93. Shyamsundar's appeal was
dismissed for default for non-removal of office objections on 15.1.2000.
Thus, it is obvious that both in the matter of filing the SLP and granting of
leave, Bajranglal's appeal was earlier and Shamsundar's was later in time. In
these circumstances, we are unable to accept the contention that an order
H dismissing a subsequent appeal for default can operate as res-judicata in
B.S. RUIA v. S.N. RUIA [SRIKRISirnA, .I.] 389
respect of an earlier appeal. Neither Section 11 of the CPC, nor any principle A
derivable therefrom, would bar the appeal as contended by the respondents.
The contention is misconceived and we see no merit in the contention. In our
judgment, the appeal is perfectly maintainable.

B. Conflict of decrees
B
The respondents then contend that, even ifthe appeal is not liable to be
dismissed on the principle of res-judicata, even otherwise the appeal should
be dismissed as it may result in conflicting decrees. Upon dismissal for
default of Civil Appeal No. 7490/93, the decree made by the High Court
became final as against Shyamsundar. If the present appeal is allowed, resulting C
in setting aside the decree or making any modification thereof, it would result
in the anomalous situation of there-being conflicting decrees between the
same parties, arising out of same cause of action, is the contention.

In our view, this contention has no merit. Where there are several
defendants, who are equally aggrieved by a decree on a ground common to D
all of them, and only one of them challenges the decree by an appeal in his
own right, the fact that the other defendants do not choose to challenge the
decree or that they have lost their right to challenge the decree, cannot render
the appeal of the appealing defendant infructuous on this ground. In fact,
Rule 4 and Rule 33 of Order XL! of the CPC are enacted to deal with such
a situation. E

A number of judgments were cited before us in support of the argument
that the present appeal should not be entertained as otherwise it may be likely
to produce conflicting decrees.

In Narhari and Ors. v. Shankar and Ors., [1950) SCR 754, A instituted F
a suit for possession of two-thirds share in an estate against B and C who
claimed a one-third share each in it. The suit was decreed by the trial court.
B & C filed separate appeals. These appeals were heard together and disposed
of by the same judgment. Two separate decrees were prepared. A preferred
an appeal from one of these decrees in time paying the full court fee. After G
the period of limitation had expired, A preferred an appeal from the other
decree also. The High Court held that inasmuch as one of the appeals was
time barred, the first appeal was barred by res judicata. This Court rejected
this contention and, approving the observations of Tek Chand, J., in Mt.
Lachhmi v. Mt. Bhulli, AIR (1927) Lahore 289, pointed out that the
determining factor is not the decree, but the matter in controversy. The estoppel H
390 SUPREME COURT REPORTS [2004] 3 S.C.R.

A is not created by the decree. but can only be created by the judgment and that .......
there was no question of application of principle of res judicala. It was
therefore, held that the appeal of A was competent.

In Karam Singh Sobli and Anr.. v. Shri Pratap Chand and Anr., (1964]
4 SCR 647, a proceeding under the Delhi Rent Control Act for eviction had
B been filed against the tenant and sub-tenant on the ground that the tenant had,
without the consent of the landlord, sublet, assigned or otherwise parted with
the rented premises. One decree of eviction was passed by the trial judge
against both tenant and sub-tenant who were defendants. Both the defendants
were aggrieved by the decree of eviction and each had his own right to
C appeal from that decree. While the tenant failed to move an appeal, the sub-
tenant filed an appeal against the decree. This Court held that there was one
decree and therefore the appellant was entitled to have it set aside "although
thereby the tenant who had not appealed would also be freed from the decree".
It was open to the sub-tenant to contend that the decree was wrong as it was
passed on an erroneous finding and the sub-tenant could challenge the decree
D on any available ground. Thus, it was held that the appeal of one of the
defendants was competent, even though the other defendant who was equally
situated had filed no appeal.

In Pandit Sri Chand and Ors. v. Mis. Jagdish Parshad Kishan Chand
and Ors., (1966] 3 SCR 451, the plaintiff had commenced his suit against
E three sureties who were defendants in a suit. The said defendants objected to
the execution of the decree against them on several grounds. The trial court
rejected the objections raised by the sureties and th is order was confirmed by
a single Judge of the High Court. An appeal under the letters patent was
dismissed in limine. The three sureties moved this Court by special leave
p petition in which leave was granted to them. One of the sureties died even
before the record of the appeal was transmitted to this Court. The application
made for bringing the legal heirs on record came to be rejected. It was
contended before this Court that the appeal had abated in its entirety because
the heirs ofone of the sureties had not been brought on record, as the ground
on which the judgment of the High Court proceeded was common to all the
G sureties. This contention was upheld for the reason that the appeal filed in
this Court was a single appeal by all the three sureties. and one of them
having died and his legal representatives not having been brought on record,
the decree became final as against such a surety. It was also held that Order
XL! Rule 4 of the CPC would not apply here. This judgment is distinguishable
H on its facts as there was only one appeal filed by all three sureties.
~

B.S. RUIA v. S.N. RUIA [SRIKRISHNA. J.] 391
In Ratanlal Shah v. Firm lalmandas Chhadammalal and Anr.. (1969) A
/!
2 SCC 70, this Court had occasion to examine the scope of application of
Order XLI Rule 4 of the CPC in a situation like the present one. In this case
there was a joint decree against two defendants R & M. R alone appealed to
the High Court by impleading M as second respondent in the· appeal. M was
not served with notice as a result of which the appeal came to an end as far
as M was concerned. The High Court dismissed the appeal on the ground that
B
the decree was jointly against both R & M, in a suit on a joint cause of
action, the decree against M having become final, R could not be heard alone
in the appeal. This Court reversed the judgment of the High Court by taking
~,
the view that the appeal could not be dismissed on the ground that M was not
served, nor could the appeal be dismissed on the ground that there was a c
possibility of two conflicting decrees. Delineating the provisions of Order
XL! Rule 4 of the CPC this Court said :

"The object of the rule is to enable one of the parties to a suit to
obtain relief in appeal when the decree appealed from proceeds on a
ground common to him and others. The court in such an appeal may D
reverse or vary the decree in favour of all the parties who are in the
same interest as the appellant."

This Court reiterated its view in Karam Singh Sobti (supra) and held
that even if it be assumed that R was negligent, on that ground he could not
be deprived of his legal right to prosecute the appeal and to claim relief under E
Order XLI Rule 4 of the Code of Civil Procedure, ifthe circumstances of the
case warrant it. The decree of the Trial Court proceeded on a ground common
to M and R. In the appeal filed by R, he was denying liability for the claim
of the plaintiffs in its entirety. Thus, it was held that this was essentially a
case in which the Court's jurisdiction under Order XL!, Rule 4, Code of Civil
F
Procedure could be exercised.
'":
This view was reiterated by this Court in Mahabir Prasad v. Jage Ram
and Ors., [1971] I SCC 265. It was a case in which the plaintiff Mahabir
Prasad, his mother and his wife obtained a decree against the defendant Jage
Ram and two others for a certain amount. Their application for execution was G
dismissed by executing court. Mahabir Prasad alone preferred an appeal to
the High Court and impleaded his mother Gunwanti Devi, and his wife Saroj
Devi as party-respondents. Saroj Devi died and the legal representatives were
> ~· not brought on record within the period of limitation and her name was
struck off from the array of respondents. The High Court dismissed the
appeal on the ground that it abated in its entirety. Mahabir Prasad appealed H
392 SUPREME COURT REPORTS l'.!004] 3 S.C.R.

A to this Court. Allowing the appeal it was held by this Court : (vide para 4)
"Order XL! Rule 4 Code of Civil Procedure, invests the Appellate
Court with power to reverse or vary the decree in favour of all the
plaintiffs or .defendants even though they had not joined in the appeal
if the decree proceeds upon a ground common to all the plaintiffs or
B defendants".

This Court in Mahabir Prasad (supra) distinguished the judgment in
Rameshwar Prasad, (1964] l SCR 549 as a case in which all the plaintiffs
whose suits had been dismissed had filed an appeal and thereafter one of •'
them being dead and his heirs were not brought on record. While in the case
c before this Court, there was an order against all the decree holders but all of
them had not appealed. The previous judgment in Ratanlal Shah (supra) was
followed approvingly. Commenting on the judgment in Ratanla/ Shah (supra)
in the light of Order XL! Rule 4 of the CPC, this Court observed: (vide para
6)
D "Competence of the Appellate Court to pass a decree appropriate to
the nature of the dispute in an appeal filed by one of several persons
against whom a decree is made on a ground which is common to him
and others is not lost merely because of the person who was jointly
interested in the claim has been made a party-respondent and on his
E death his heirs have not been brought on the record. Power of the
Appellate Court under Order XL!, Rule 4, to vary or modify the
decree of a Subordinate Court arises when one of the p~rsons out of
many against whom a decree or an order had been made on a ground
which was common to him and others has appealed. Th<.t power may
be exercised when other persons who were parties to the proceeding
F before the Subordinate Court and against whom a decree proceeded
on a ground which was common to the appellant and to those other ').'
persons are either not impleaded as parties to the appeal or are
impleaded as respondents."

The same principle was reiterated in Govindan v. Subramaniam, [2000]
G 9 SCC 510, where it was held that Order XL! Rule 4 of the CPC would apply
in such a case.

In Harihar Prasad Singh and Ors. v. Balmiki Prasad Sin.sh and Ors.,
(l 975] l SCC 212, a similar contention was urged. After analysing Ratanlal
, J,

(supra), Karam Singh (supra) and Mahabir Prasad (supra), and distinguishing
H
13.S. RUIA v. S.N. RUIA jSRIKRISHNA . .I.] 393

,,...., the judgments in State of Punjab v. Nathu Ram, [1962] 2 SCR 636, and A
Rameshwar Prasad v. Shyam Bihari/a/, [ 1964] 3 SCR 549, it was held that
normally Order XL! Rule 41 would apply to a situation like the one before
us.

This principle has also been reiterated in the recent Judgment in Banarsi
and Ors. v. Ramphal, [2003] 9 SCC 606, which holds that Order XLI Rule B
4 and Rule 33 are to be read together. This Court observed (vide para 15)

"Rule 4 seeks to achieve one of the several objects sought to be
achieved by Rule 33, that is, avoiding a situation of conflicting decrees
coming into existence in the same suit. The abovesaid provisions
confer power of the widest amplitude on the appellate court so as to C
do complete justice between the parties and such power is unfettered
by consideration of facts like what is the subject-matter of the appeal,
who has filed the appeal and whether the appeal is being dismissed,
allowed or disposed of by modifying the judgment appealed against.
While dismissing an appeal and though confirming the impugned D
decree, the appellate court may still direct passing of such decree or
making of such .order which ought to have been passed or made by
the court below in accordance with the findings of fact and law
arrived at by the court below and which it would have done had it
been conscious of the error committed by it and noticed by the
appellate court. While allowing the appeal or otherwise interfering E
with the decree or order appealed against, the appellate court may
pass or make such further or other, decree or order, as the case would
require being done, consistently with the findings arrived at by the
appellate court. The object sought to be achieved by conferment of
such power on the appellate court is to avoid inconsistency, inequity, p
inequality in reliefs granted to similarly placed parties and unworkable
decree or order coming into existence. The overriding consideration
is achieving the ends of justice. Wider the power, higher the need for
caution and care while exercising the power. Usually the power under
Rule 33 is exercised when the portiori of the decree appealed against·
or the portion of the decree held Iiable to be set aside or interfered G
by the appellate court is so inseparably connected with the portion
not appealed against or left untouched that for the reason of the latter
portion being left untouched either injustice would result or inconsistent
decrees would follow. The power is subject to at lest three limitations:
firstly, the power cannot be exercised to the prejudice or disadvantage ·H
394 SUPREME COURT REPORTS [2004] 3 S.C.R.

A of a person not a party before the court; secondly, 2 claim given up
or lost cannot be revived; and thirdly, such part of the decree which
essentially ought to have been appealed against or •)bjected to by a
party and which that party has permitted to achieve a finality cannot
be reversed to the advantage of such party. A case where there are
two reliefs prayed for and one is refused while the other one is
B granted and the former is not inseparably connected with or necessarily
depending on the other, in an appeal against the latter, the former
cannot be granted in favour of the respondent by th•! appellate court
exercising power under Rule 33 of Order 41."

C This judgment considers the observations made in Pannalal v. State of
Bombay, [ 1964] l SCR 980, Harihar Prasad Singh (supra) and Nirmala Bala
Ghose and Anr. v. Balai Chand Ghose and Ors., [1965] :l SCR 550, and
holds that Order XLI Rule 4 of the CPC would take care of i situation as the
one before us.

D In Chandramohan Ramchandra Patil v. Bapu Koyappa Patil (dead)
through LRS. and Ors., [2003] 3 SCC 552, a suit for parti-:ion was filed in
which the right of partition was recognised and upheld by the Court. In the
opinion of the Court, the fact that one of the plaintiffs had appealed, and not
all, did not render the appellate court powerless for it could invoke the
provisions of Order XLI Rule 4 read with Order XLI Rule 33 of the CPC.
E It was held that the object of Order XLI Rule 4 is to enable one of the parties
to a suit to obtain relief in appeal when the decree appealed from proceeds
on a ground common to him and others. The Court in suc.1 an appeal may
vary the decree in favour of all the parties who are in the same interest as the
appellant. The Court observed (vide paras 14, 15):
F "Order 41 Rule 4 of the Code enables reversal of the decree by the
court in appeal at the instance ofone or some of the plaintiffs appealing
and it can do so in favour of even non-appealing plaintiffs. As a
necessary consequence such reversal of the decree can be against the
interest of the defendants vis-a-vis non-appealing plaintiffs. Order 41
G Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33
empowers the appellate cou11 to do complete justice between the
parties by passing such order or decree which ought to have been
passed or made although not all the parties affected by the decree had
appealed. ~ '

H In our opinion, therefore, the appellate court by invoking Order
B.S. RUIA v. S.N. RUIA [SRI KRISHNA . .I.] 395
41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief A
even to the non-appealing plaintiffs and make an adverse order against
all the defendants and in favour of all the plaintiffs. In such a situation,
it is not open to urge on behalf of the defendants that the decree of
dismissal of suit ·passed by the trial court had become final inter se
between the non-appealing plaintiffs and the defendants."
B
In K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998] 7 SCC
327, dealing with the powers of the appellate court under Order XL! Rule 33
j of the CPC, this Court observed (vide para 12):

"Order 41 Rule 33 enables the appellate court to pass any decree or
order which ought to have been made and to make such further order c
or decree as the case may be in favour of all or any of the parties
even though (i) the appeal is as to part only of the decree; and (ii)
such party or parties may not have filed an appeal. The necessary
condition for exercising the power under the Rule is that the parties
to the proceeding are before the court and the question raised properly D
arises (sic out ot) one of the judgments of the lower court and in that
event, the appellate court could consider any objection to any part of
the order or decree of the court and set it right. We are fortified in
this view by the decision of this Court in Mahan/ Dhangir v. Madan
Mohan, (1987] Supp. SCC 528. No hard and fast rule can be laid
down as to the circumstances under which the power can be exercised E
under Order 41 Rule 33 CPC and each case must depend upon its
own facts. The Rule enables the appellate court to pass any order/
decree which ought to have been passed. The general principle is that
a decree is binding on the parties to it until it is set aside in appropriate
proceedings. Ordinarily the appellate court must not vary or reverse F
a decree/order in favour of a party who has not preferred any appeal
and this Rule holds good notwithstanding Order 41 Rule 33 CPC.
However, in exceptional cases, the Rule enables the appellate court
to pass such decree or order as ought to have been passed even if
such decree would .be in favour of parties who have not filed any
appeal." G
In Pannalal v. State of Bombay and Ors., (1964] I SCR 980, this Court
,. )-. said (vide page 987):

"Even a bare reading or Order 41, rule 33 is sufficient to convince
any one that the wide wording was intended to empower the appellate .H
I
)(

396 SUPREME COURT REPORTS [2004] 3 S.CR.

A court to make whatever order it thinks fit, not only as between the
appellant and the respondent but also as between a 1·espondent and a
respondent. It empowers the appellate court not only to give or refuse
relief to the appellant by allowing or dismissing the appeal but also
to give such other relief to any of the respondent as 'the case may
require'."
B
The respondents however, strongly rely on certain observations made
in the judgment of the Constitution Bench of this Court in Badri Narayan
Singh v. Kamdeo Prasad Singh and Anr., [1962] 3 SCR 759, and contended of
that the observations made in Narhari's case (supra) had been distinguished
C by the Constitution Bench. The case before the Constitution Bench was one
where the Election Tribunal, on the petition of the first respondent, had set
aside the election of the appellant on certain grou_nds. The Election Tribunal,
however, did not entertain the first respondent's prayer to declare him as duly
elected. Both the appellant and the first respondent being aggrieved went up
in appeal to the High Court. Appellant's Appeal No. 7 was against the order
D setting aside his election, while first respondent's Appeal No. 8 was against
not declaring him elected. Both were disposed of by the common judgment
by the High Court which dismissed Appeal No.7 but allowed respondent's
Appeal No.8 and declared him to be duly elected. A preliminary objection
was taken on behalf of the first respondent that the appeal was incompetent
E as barred by the principle of res judicata as the appellant did not appeal
against the order of the High Court in his own Appeal No.7, the dismissal of
which by the High Court confirmed the order of the Election Tribunal setting
aside tht: election of the appellant. Hence, it was contended that the appellant
could not question the correctness of the finding that he held an office of
profit which was the basis of the dismissal of Appeal No.7. The Constitution
F Bench of this Court was of the view that two appeals arose out of one
proceeding, the subject matter of each appeal being different. While the
subject matter of Appeal No.7 related to his election being good or bad, the
subject matter of Appeal No.8 had no relation to the validity or otherwise of
the election of the appellant, but was related to the further action to be taken
G in case the election of the appellant was bad on the ground that he holds an
office of profit. It was in this situation that the judgment in Narhari (supra)
was distinguished by the Constitution Bench, which pointed out that the
observations in Narhari (supra) did not apply to cases which are governed by
the general principle of res judicala which rests on the principle that a judgment x·
is conclusive regarding the points decided between the same parties and that
H the pa11ies should not be vexed twice over in the same case. In our view, the
\;:.

B.S. RUIA v. S.N. RUIA [SRIKRISHNA, J.) 397
judgment of the Constitution Bench has no application to !he facts before us. A
The effort of the respondent to rely on Shivdhan Singh (supra) in support
of the objection is also in vain for the observations in Shivdhan Singh have
been considered and distinguished in Managing Director v. K Ramachandra
Naidu and Anr., [1994] 6 SCC 339.
B
Reliance by the respondents on Nirma/a Bala Ghose, [ 1965] 3 SCR
550 is also of little use. A three Judge bench of this Court considered the
applicability and the ambit of Order XL! Rule 33, CPC in such a situation,
and observed:

"When a party allows a decree of the Court of First Instance to c
become final, by not appealing against the decree, it would not be
open to another party to the litigation, whose rights are otherwise not
affected by the decree, to invoke the powers of the appellate Court
under 0. 41 R.33, to pass a decree in favour of the party not appealing
so as to give the latter a benefit which he has not claimed. Order 41
D
Rule 33 is primarily intended to confer power upon the appellate
Court to do justice by granting relief to a party who has not appealed,
when refusing to do so, would result in making inconsistent,
contradictory or unworkable orders. We do not think that power under
Order 41 Rule 33 of the Code of Civil Procedure can be exercised in
this case in favour of the deities." E
In our view, in Nirmala Bala Ghose (supra) this Court has not made
any observations contrary to what had been laid down earlier.

We do not think that the judgment in Premier Tyres Limited v. Kera/a

,, State Road Transport Corporation, [1993] Supp. 2 SCC 146, cited by the
Respondents has any relevance for it is entirely distinguishable on facts. It
was a case where two suits were tried together and decided by a common
F

judgment, each of them being partly decreed. One of the parties did not
appeal against dismissal of part of his claim, but appealed against the part
decree in the other suit. It was in these circumstances that it was held that his
appeal was barred by res-judicata. G

In State of Punjab v. Nathu Ram, [ 1962] 2 SCR 636, this Court
considered a situation of such conflicting decrees and made the following
~ ~ observations (vide p. 639):

'The question whether a Court can deal with such matters or not, will H
-~
i
~

398 SUPREME COURT REPORTS [2004) 3 S.C.R.

A depend on the facts of each case and therefore no exhaustive statement
;.
can be made about the circumstances when th is is possible or is not
possible. It may, however, be stated that ordinarily the considerations
which weigh with the Court in deciding upon this question are whether
the appeal between the appellants and the respondent; other than the
deceased can be said to be properly constituted or can be said to have
B all the necessary parties for the decision of the contrO\ ersy before the
Court. The test to determine this has been described in diverse forms.
Courts will not proceed with an appea.1 (a) when the success of the
appeal may lead to the Court's coming to a decisicin which be in
conflict with the decision between the appellant and the deceased
c respondent and therefore which would lead to the Court's passing a
decree which will be contradictory to the decree which had become
final with respect to the same subject matter between the appellant
and the deceased respondent; (b) when the appellant could not have
brought the action for the necessary relief against those respondents
alone who are still before the court and (c) when the decree against
D the surviving respondents, if the appeal succeeds. be neffective, that
is to say. it could not be successfully executed."

The rationale behind the principle was explained by the Court thus
(vide p. 641):

E "The reason is plain. It is that in the absence of the lega. representatives
of the deceased respondents, the appellate Court cannot determine
anything between the appellant and the legal representatives which
may affect the rights of the legal representatives under the decree. It
is immaterial that the modification which the Court will do is one to
which exception can or cannot be taken."
F
In our view, this is the litmus test to decide whether an appeal should ..,I·
be dismissed for possible conflict of decrees or not. Appl} ing this test, it
appears to us that the appeal before us cannot be dismissed. Shyamsunder is
the 5th respondent before us, who has been served, but has chosen to remain
G absent. The fact that Shyamsunder's own appeal failed for 1on-compliance
with the office objections cannot have the consequence of defeating the appeal
of the present appellant Bajaranglal. Order XL! Rule 4 read with Rule 33
invests this Court with sufficient power to entertain the appeal of Bajranglal
before us and to make any appropriate order thereupon consonant with justice, x '
equity and good conscience. In the result, we overrule ~he preliminary
H objections and hold that the appeal is maintainable.
•.
'-:

B.S. RUIA v. S.N. RUIA [SRI KRISHNA. J.] 399
Merits of the Appeal. A
The learned Single Judge raised the following issues and answered
them as under:
S.No. Issues Remarks
Whether the suit is bad for misjoinder of In the negative B
parties and/or causes of action for reasons
alleged in the respective written-statements
of Defendants Nos.5 and 8 ?
1 2 Whether the suit is bad for non-joinder of In the negative
necessary parties for the reasons alleged in c
their respective written statements ?
3 Whether the plaintiff is the owner of the suit In the negative.
property ? Plaintiff has not
proved her title;
and the title relied D
on is invalid in
law, and, therefore,
~- a nullity.
4 Whether the Plaintiff has not acquired title In the affirmative
to the suit prnperty for the reasons alleged in
E
their respective written-statements ?
5 Whether each of the defendants is a tres- In the negative
passer a~ alleged in part 4 of the plaint ?
6 Whether the Defendant is the tenant in respect In the negative
of the premises in his occupation as alleged in F
~~ their respective written-statements ?
7 Whether the said auction sale was subject to In the negative
the right of the defendants' tenancy and subject
to the defendants' right of possession was and
occupation and enjoyment as alleged in their G
respective written statements ?
8 Whether the plaintiff is entitled to mesne profits In the negative

• )..

9
as alleged in para 6 of the plaint
Whether the Plaintiff is entitled to any relief In the negative
H
/,,
I

400 SUPREME COURT REPORTS [2004] 3 S.C.R.

A and, if so, what ?

The Single Judge's finding is that the certificate of sale issued by the
BMC was invalid and the sale was liable to be declared null and void for
contravening tjle provisions of Section 206 of the BMC Act, 1888 and the
Regulations made thereunder. After examining the evidence before him, the
B learned single Judge came to the conclusion that there was clear contravention
of the provisions of the BMC Act and the Regulations dealing with the
auction sale. He also came to the conclusion that the sale had taken place
without any reserved bid, that Janardhan Dhuri had never disclosed that he
was bidding as agent of R-8; the plaintiff never entered the box, nor did 'I
Janardhan Dhuri, to prove that Janardhan Dhuri has bid as her agent,
C consequently, R-8 being nowhere in the picture, the certificate of sale could
not have been issued in her name.

The Division Bench came to the conclusion that the withdrawal of Suit
No. O.S. 218173 and the rejection of the application moved by Bajranglal for
D transposition as plaintiff, which was upheld by the Division Bench, and the
summary dismissal of the special leave petition there against, conclusively
precluded the contention urged by the appellant in this regard. The Division
Bench held, "the result of rejection of application for transposition is that the
cause of action against the corporation and the auction purchaser came to an
end" and based its finding upon the fact that, on the date when Bajranglal
E made the application for transposition as plaintiff (I 0.9.1985), Bajranglal had
lost the right to file a suit for avoiding the auction sale, as it was barred by
time. This led the Division Bench to hold, "the result of withdrawal of the
suit and the rejection of application for transposition is that the auction sale
in favour of plaintiff had become final and Bajaranglal cannot raise any
F objection in the present suit and avoid auction sale."

In our view, this reasoning of the Division Bench is erroneous. Although
the period of limitation prescribed in the Limitation Act, 1963, precludes a
plaintiff bringing a suit which is barred by limitation, as far as any defence
is concerned, there is no such limitation. In reply to the plaintiffs suit that she
G had derived title to the suit property by virtue of the auction sale and the
certificate of sale issued by the BMC, it was perfectly open to the defendants,
including Bajranglal, to contend to the contrary. The burden of proving the
facts alleged in the plaint was squarely upon the plaintiff. After recording
evidence on both sides, if the evidence showed that the auction sale held by
the BMC was contrary to the provisions of the BMC Act and the Regulations
H made thereunder, the defendants were entitled to urge upon the learned Single
_. B.S. RUIA v. S.N. RUIA [SRIKRISHNA. J.] 401

,.-I.'
Judge to come to the conclusion recorded by the learned Single Judge. A

.,. The respondents, however, contend that the sate proceedings could be
challenged only by way of a substantive suit. Inasmuch as the suit had become
time barred on the date of the application for transposition, there was no
scope for the sale of Hari Niwas to the plaintiff being challenged by a suit.
They urged that the Division Bench is right in ch~rac'~rising the challenge B
to the suit by Bajranglal as a 'backdoor method'.

., It appears to us that the contention of the respondent is misplaced. If
the title claimed by the plaintiff was a nullity and wholly void, there was no
need for any of the defendants including Bajranglal to challenge it by way
of a substantive suit. They could always set up nullity of title as a defence
c
in any proceeding taken against them based upon such title. If, in fact, the
sale was a nullity, it was non est in the eye of law and all that defendant had
to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti
Sia Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the
Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 D
Born LR 577.

In Vidyadhar v. Manikrao and Anr., [1999] 3 SCC 573, the plaintiff
had filed a suit on the basis of a sale deed executed by D-2 in his favour and
sought the relief of possession of the property from defendant no. I who was
an absolute stranger to the sale deed. The question which arose was whether E
defendant no. I, who was in possession, could justify his possession by urging
the nullity of sale transaction between the plaintiff and defendant no.2. In
these circumstances, this Court held (vide para 21 ):

"The above decisions appear to be based on the principle that a
person in his capacity as a defendant can raise any legitimate plea F
'~ available to him under law to defeat the suit of the plaintiff. This
would also include the plea that the sale deed by which the title to the
property was intended to be conveyed to the plaintiff was void or
fictitious or, for that matter, collusive and not intended to be acted
upon. Thus, the whole question would depend upon the pleadings of G
the parties, the nature of the suit, the nature of the deed, the evidence
led by the parties in the suit and other attending circumstances."
... Here, the plaintiffs suit is for ejection of the defendant and for possession
)<.
of the suit property. She must succeed or fail on the title that she establishes.
If she cannot succeed in proving her title, the suit must fail notwithstaniling H
I

/

402 SUPREME COURT REPORTS [2004] 3 S. C.R. &

A that the defendant in possession may or may not have title to the property.
(See in this connection: Brahma Nand Puri v. Neki Puri, (1965] 2 SCR 233
\. ..
at p. 237).
"
Appellant Bajranglal had sufficiently pleaded in his written statement
the defects in the title of the plaintiff and it was, therefore, open for the
B learned Single Judge to go into this question and decide if the plaintiff had
good title or not. The Division Bench, therefore, erred in interfering with the
finding of the learned Single Judge on this ground. On the facts, the learned
Single Judge has elaborately discussed the evidence and come to a finding
with which it is difficult to disagree. We are unable to share the view of the
c Division Bench that the defects in title pleaded and found by the learned
Single Judge were mere irregularities in conducting the sale which could not
have been challenged collaterally. In our view, the finding of the learned
Single Judge that the plaintiffs title was invalid and non est for contravention
of the provisions of Section 206 of the BMC Act and the Regulations made
thereunder, is fully justified and brooked no interference in appeal.
D
The Privy Council's observations in Nawab Umjad Ally Khan v.
Mohumdee Begum and Anr., 1868 Sutherland WR Vol. X 25, on which the
respondents rely, have to be understood in the context of the case before it.
As a rule, it may be that an Act of the State can be questioned in a Municipal
Court by way of a duly constituted suit. However, if another person claims
E a title from a so-called Act of the State, we see no reason why the defendant
cannot plead the nullity of title. In our view, the principle in Vidyadhar 's
case clearly applies to the case on hand.

Failure to implead BMC

F The respondent then raised a contention that the validity of the title
derived by the plaintiff Satyavati could not have been considered in the suit
~·
without the Bombay Municipal Corporation being impleaded as a necessary
party. In our view, this is an argument of post hoc ergo proptor hoc. If we
accede to argument that the Municipal Corporation was a necessary party,
then by reason of Order I Rule 9 of CPC, the consequence would be the
G dismissal of the plaintiff Satyavati's suit for non-joinder of BMC, which
according to her is a necessary party. In fact, the learned si·ngle Judge was
desirous of adjudicating the issues fully and completely, and therefore,
proposed to add the BMC as a party to the suit. The plaintiff as a dom!nus ,
J(
litis vigorously opposed and successfully persuaded the learned Single Judge
H not to add the Corporation as a necessary party. It was in these circumstances
I
~

B.S. RUIA v. S.N. RUIA [SRIKRISllNA . .I.] 403

that the suit proceeded without the Corporation being made a party to the A
suit. For the plaintiff (R-8) to now plead before us that the BMC was a
necessary party, without whose presence the adjudication of the issues could
not have proceeded, appears to us to be an argument of desperation.
Vic~i·adhar 's case (supra) is a complete answer to this argument. In any event,
the only interest that the Corporation had in the matter was towards its tax B
arrears as it was not interested in the title oft!'~ vcperty being transferred
to it.

In the written statement filed by Bajranglal, he had relied upon and
reiterated all contentions which had been urged by Mahavirprasad in his suit
No.218173. He had also reiterated and repeated all contentions urged by C
Mahavirprasad both in his own suit no.218/73 and in his written statement in
Suit No.118173. We are satisfied that the defence raised by Bajaranglal was
quite comprehensive. He had challenged the plaintiff's title on the basis of
the alleged auction sale as a nullity on the grounds of ultra virus, lack of
jurisdiction, non-service of demand notice on all heirs/co-owners, breach of
mandatory provisions of law and also perpetration of fraud the particulars of D
which were reiterated and adopted from the suit of Mahavirprasad no.218/73,
as well as Mahavirprasad's written statement in Suit No.118/73.

The reliance placed by the respondent on the judgment in Narhari
Mohanty, AIR (1963) Ors. 186; Chitti Perumal Pillai v. Devasahayam, (1956)
TC 181 (FB).and Kishore Singh v. Te), AIR (1967) MP 120 is misplaced. E
These were all cases where a substantive suit was filed for setting aside a
revenue sale for realisation of Government's arrears. In these circumstances,
the view taken was that the Government ought to have been made a party
along with the auction purchaser.

In Mohan Wahi v. Commissioner lncome-tax, Varanasi, [2001] 4 SCC F
362, there was a recovery certificate issued by the tax officer under the
Income-tax Act, 1961 without the required service of notice of demand on
the assessee as mandated by section 156 of the Act, prior to issue of the
recovery certificate .. Setting aside the sale of the property this Court observed
(vi de para 21 ): G
"A little more sensitive approach is required to be adopted in the
process of dispensing justice when it is found that a valuable property
of a person was sought to be sold away for recovery of such arrears
as did not exist at all."
H
404 SUPREME COURT REPORTS [2004] 3 S.C.R. •
A Even in the present case. the appellant was not invited to the auction
sale as required by the BMC Act under section 209. Further. the sale was
held for recovery of arrears which were not even included in the warrant of
attachment pursuant to which the sale was held.

MN. Datar v. S.K. limaye. AIR (1921) Born 257, was a case of sale
B in execution by a Revenue Court and an attempt to execute the decree. The
plaintiffs who were purchaser in the auction sale contended that they were
purchasers without notice, and therefore, their title was good as against the
judgment debtor. This argument was sought to be buttressed by an analogical
reference to a sale in execution under the decree of a civil court. This argument
C was categorically rejected by Macleod, C.J., who observed (Vide p.258) :
'
"It appears to me that there is a very great distinction between sales
in execution of civil Court decrees and sales by the revenue Courts
for arrears of assessment. I think that if it were found, as it has been
found in this case, that as a matter of fact the defendant in the revenue
D proceedings was entitled to hold his lands free of assessment, any
sale which took place on the footing that he was bound to pay
assessment would be invalid and that the purchaser in such a sale
would not acquire a good title except by adverse possession. In this
case the purchaser did not even get possession. The judgment-debtor
remained in possession of the property, and ten years after the sale
E the vendor who had bought the property for Rs.8, subject to various
mortgages. sold it to the present plaintiffs. In my opinion. the
defendants were entitled to raise the question, whether or not the sale
in I 904 was valid, and on the facts of this case I think that they
succeeded in showing that the sale was invalid."
F VD. Deshpande v. K.D. Kulkami, AIR (1976) Bom 190, was also a
case of a suit to set aside the auction sale held by the revenue authorities. It
was contended for the defendant that such relief could not be given in the
absence of the State Government which was a necessary party to the suit.
This contention was rejected by the Division Bench of the Bombay High
G Cou11 by observing that where the plaintiffs can obtain complete and effective
relief from the Court in respect of the subject matter in dispute against a
party, it is not necessary to join any other party whether it is the Government
or others. As long as no relief was claimed against the State Government,
which the plaintiff was not bound to. the suit was competent. It was observed
(vide para 48) :
H
13.S. RUIA v. S.N. RUIA [SRI KRISHNA . .I.] 405
"It is well established that where a Revenue Officer purpm1s to do an A
act or pass an order which is not valid and without jurisdiction, the
purported order is a mere nullity; and it is not necessary for anybody,
who objected to that order to apply to set it aside. It can rely on its
invalidity when it is put up against him, although he has not taken
steps to set it aside. Such an order do not give any right whatsoever, B
not even right of appeal.

Since this is the legal position with regard to a substantive suit
challenging the title of the purchaser in a revenue sale, we do not think that
the situation of the appellant before us who merely pleaded nullity and
invalidity of the plaintiffs title can be any different. It is significant that, C
unlike the provisions in some other statutes, viz. section 39 of the Companies
Act, 1956 which provides that the certificate of incorporation would be
conclusive evidence that all requirements of registration under the Act have
been complied with, significantly, the Bombay Municipal Corporation Act,
does not have any similar provision making the certificate of sale issued by
it conclusive evidence of compliance with all requirements of the BMC Act D
and Regulations thereunder.

We are, therefore, of the view that the finding of the Division Bench
in the impugned judgment that the action of the Bombay Municipal
Corporation in holding the auction sale could not have been challenged by
Bajaranglal after withdrawal of the suit by Mahavirprasad and that the right E
to challenge the auction sale wou Id not subsist in Bajaranglal by way of a
defence in the suit filed by the plaintiff auction purchaser for recovery of
possession, is erroneous.

The Division .Bench has also taken note of the fact that Mahavirprasad,
who was a co-owner of the property, had filed suit No.2 I 8/73 (to which other
F
co-owners including Bajaranglal were parties) for setting aside the auction
sale and thereafter withdrew the suit. This, according to the Division Bench,
precluded all other co-owners from challenging the auction sale on the same
ground or by way of a defence in a suit instituted by auction purchaser to
recover possession. The reasoning of the Division Bench appears to be that, G
as Bajaranglal could not have instituted a suit for challenging the auction sale
and the sale certificate, equally, he could not raise a defence'I'(," the suit and
plead that the auction sale was invalid. This reasoning in our view, is wholly
erroneous in the light of the authoritative pronouncements of this Court to
which we have already referred.
H
I
j(

406 SUPREME COURT REPORTS 12004] 3 S.C.R.

A Fraud
The Division Bench of the High Court took the view that in the written
statement filed by Bajaranglal in the suit there was no complaint of fraud and
no particulars whatsoev~r of fraud were pleaded. It further held that.not only
was the fraud not pleaded, but no issue in connection with fraud had been
B framed by the trial judge and yet he proceeded to make the finding that the
auction sale was vitiated by fraud.

We have already noticed that, in the written statement filed by
Bajaranglal in suit no.118/73, as defendant no.8 he specifically relied upon t
the defence taken by Mahavir Prasad and he had also adopted and reiterated
c the contentions urged by Mahavirprasad in his suit no.218/93. Thus, there
were enough pleadings with regard to the fraudulent manner in which the
property was sought to be grabbed by Ramprasad through his·wife Satyavati,
who was plaintiff in suit no. 118173. The single Judge after a detailed analysis
of the evidence pointed out as to how Ramprasad had connived with the
D officers of the BMC to grab the suit property, which was worth lakhs of
Rupees. for a paltry sum of Rs. 16,000. The conduct of Ramprasad and the
plaintiff Satyavati, as found from the facts adduced before the trial Judge,
fully justify the conclusions of the single Judge as to the fraud perpetrated.

It is necessary to recall some of the findings made by the single Judge
E whid1 appear to be borne out by the evidence on record. In the first place,
the property tax in respect of Hari Niwas was being paid by the firm M/s.
Gorakhram Gokalchand in which Shivchandrai and Mahavirprasad were
partners. After Shivchandrai shifted to Madras in 1964. it was Mahavirprasad
and Ramprasad who were attending to the work of payment of taxes in
F respect of the said property. Janardan Dhuri was assisting them in the
management of property as an employee of the said firm till about 1969-70.
Thereafter, he joined as an employee of the firm of Gorakhram Haribux
which was owned by Ramprasad. The firm had its office on the ground floor
of Hari Niwas. The Municipal bills were being received by Mahavirprasad
and sometime by Janardan Dhuri. At an earlier stage a warrant of attachment
G had been issued and the property was sought to be put up for auction by the
BMC. At that time, the reserved bid fixed by the BMC was Rs. 30,600 as on
14. 7.1969. That the value of the property was Rs. 2.00,000, even at the time
of filing of the suit, was not challenged. The learned single Judge traced the
events which had transpired and took the view that there was a clear attempt
H by Ramprasad to get the property knocked down in sale for a paltry sum of
B.S. RUIA v. S.N. RUIA [SRI KRISHNA . .I.] 407

_....J../ Rs. 16,000. After the death of Shivchandrai on 7.6.1971, all the heirs of A
Shivchandrai were entitled to claim ownership of the property, and Ramprasad
had a duty to inform the BMC that Shivchandrai had died on 7.6.1971 and
that the property should be shown in the joint names of all the heirs and legal
representatives of Shivchandrai together with Ramprasad. For obvious reasons,
no such thing was done by Ramprasad. The learned single Judge, therefore, B
rightly concluded on the facts that this was a deliberate failure on the part of
Ramprasad in order to cause wrongful gain to himself and a wrongful Joss
to his brothers.

The evidence on record unmistakeably shows that Mahavirprasad and
Bajranglal were not aware of the date of auction sale having been fixed as C
7.10.1971. There was neither a notice from the BMC in their names, nor did
Ramprasad who was in management of the property, Jet them know of the
same.

Mahavirprasad in his evidence in Suit No. 218173 stated that he had
vaguely learnt from Janardhan Dhuri about the auction. sale. Therefore, he D
had written a Jetter on 5.10.1971 to the BMC pointing out that Shivchandrai
had already died on 7.6.1971 and that no notice had been served on the co-
owners. He also pointed out that the Corporation had still not accounted for
the amounts already paid, and, therefore, no action could be taken which
would bind the co-owners. This Jetter was personally delivered by him in the
office of the BMC with an acknowledgement given by Superintendent 'K' E
Ward on 6.10.1971, and by the Assessment Department on 7. I0.1971.

Curiously, the plaintiff Satyavati, who claimed title to the property, led
no evidence whatsoever in her support except relying upon the certificate of
sale. In the first place, the certificate of sale was not in her name. The learned F
single Judge rightly pointed out that there was no material whatsoever on
record to come to the conclusion that Janardan Dhuri had paid the sum of Rs.
16,000 on behalf of the plaintiff Satyavati. It is rightly pointed out by the
learned single Judge that, under the Municipal Regulations applicable to such
auction sales, if a person is purchasing as an agent for another he is required
to file papers giving full name, address and description both of himself and G
his principal. The note book maintained under the Regulations and the record
produced did not show that Janardan Dhuri had disclosed that he was bidding
as an agent for the plaintiff Satyavati. Though Dhuri was still under the
employment of Ramprasad, and used to attend the hearing during the trial
when the evidence was recorded, he was not examined by the plaintiff. The H
408 SUPREME COURT REPORTS [2004] 3 S.C.R.

A plaintiff also led no evidence in support of her case. The BMC official, 1.-
Madiwala, of the office of Deputy Assessment and Collector, produced two
files containing relevant papers of the matter. The learned single Judge
carefully examined all the documents produced and arrived at the conclusion
that no reserve bid had been fixed for the auction sale which took place on
B 7.10.1971, contrary to the Regulations. At the earlier auction sale on 14.7.1969
the reserved bid fixed was Rs. 30,600. The auction sale is alleged to have
taken place on 7.10.1971; therefore, the value of the property on the date of
sale could not have been less then Rs. 30,600. Upon scanning the records of
Municipal Corporation the learned single Judge noted that there was a proposal •
for sanction of sale (Ex.27 dated 8.9.1971) which only said that it was proposed
C to sell the property without a reserve bid. There was no explanation whatsoever
in the file as to why this deviation from the Regulations was being made, nor
was the witness Madiwala in a position to give any satisfactory explanation
therefor. The learned single Judge concluded that in fact, if at all, any sale
had taken place on 7.10.1971, it was clearly contrary to Regulation 12 and
12A of the BMC Regulations pertaining to immovable property framed by
D the Standing Committee of the BMC. The witness, Madiwala, had admitted,
that apart from two files produced, there were no other papers connected with
the alleged sale, which took place on 7. I0.1971. It was in these circumstances
that the learned single Judge came to the finding that the alleged sale was
engineered by Ramprasad in collusion with BMC officials, keeping the other
E heirs in the dark to get the valuable prope1ty to himself at a throwaway price.
These were inferences which were clearly justified and correctly raised by
the learned single Judge to hold that the transaction was unconscionable, be
it called fraud, collusion or whatever else. In our view, the conclusions of the _,
single Judge were warranted by the evidence on record. The reasons given
by the Division Bench to set aside this conclusion can hardly be upheld.
F
An appraisal of the facts of the record show that the learned Single -,..~
Judge was justified in pennitting Bajranglal (defendant) to rely on the evidence
of Mahavirprasad recorded in Suit No. 218/73. The facts on record show that
on 28.7.1988 counsel for the plaintiff stated that the witness of the plaintiff
would be the plaintiff herself as well as her husband Ramprasad (D 6). The
G learned Single Judge recorded the above statement of the counsel. Thereafter,
the plaintiff examined only Yashwant Shankar Pawar, Managing Clerk, Legal
Department of the BMC for producing the certificate of the sale dated
14.1.1972. This witness categorically admitted that the certificate of sale had
been prepared by the Assessment Department after which it came to him and
H he knew nothing else in respect of the said document. Thereafter, the plaintiff
B.S. RUIA v. S.N. RUIA fSRIKRISHNA. J.] 409
neither examined any other witness nor herself. On behalf of Defendant No. A
8 (Bajranglal) and Defendant No. 5 (Shyamsunder), they were both examined
and cross-examined. They also examined one Shrikrishna Dhondu Madiwale,
Deputy Assessor and Collector, Assessment Department of the Western Suburb
of the Municipal Corporation. As a matter of fact, the persons who were
aware of the facts and circumstances under which the alleged sale certificate B
had been issued could have been the plaintiff (Satyavati) herself, Ramprasad
(D 6), Mahavirprasad (D 2) and Janardan Dhuri who was an employee of the
firm Ramprasad and Mahavirprasad, and who was actually present when the
'f auction sale took place.

When Mahavirprasad (D 2) filed his Suit No. 218173 challenging the C
validity of the sale certificate relied upon by the plaintiff, he had given
evidence in the said suit. Though Bajranglal was a defendant in the said suit,
he was only a profonna defendant and did not contest the suit. On the contrary,
he supported fully the stand which had been taken by Mahavirprasad in the
said' Suit No. 218/73. Bajranglal, in his evidence recorded in Suit No. 118/
73, stated that Mahavirprasad had told him that he withdrew his Suit No. D
218/73 because he had got some amount from Ramprasad and he was not
.likely to get anything from Bajranglal. He had also said that he and
Mahavirprasad were not on talking terms after the withdrawal of the suit.
This evidence of Bajranglal (D 8) was not challenged at all in his cross-
examination. The learned Single Judge was therefore justified in drawing the E
inference that Mahavirprasad suddenly withdrew his suit half way through
because he had been won over. There was also evidence on record which was
unchallenged that Janardan Dhuri was attending the court proceedings and
watching the proceedings both in Suit Nos. 218/73 and 118/73. The evidence
on record also shows that Ramprasad was also throughout present during the
cou11 proceedings in Suit No. 118/73. Both Ramprasad and Satyavati (plaintiff) F
--X had opportunity of cross-examination of Mahavirprasad when he tendered
evidence in Suit No. 118/73. In these circumstances, the learned Single Judge
was justified in drawing the conclusion that M~havirprasad (D 2) was being
kept away by Ramprasad (D 6) and /or the plaintiff as far as the proceedings
in Suit No. 118/73 were concerned. Hence, the learned Single Judge was G
justified in permitting Bajranglal (D 8) to produce certified copy of the
evidence given by Mahavirprasad in his own Suit No. 218/73 and to rely
thereupon.

Bajranglal stated in his written statement, as also in his evidence, that
after receipt of a telegram he had contacted Mahavirprasad and Ramprasad. H
410 SUPREME COURT REPORTS [2004] 3 S.C.R.

A While Ramprasad did not say anything, Mahavirprasad had offered to take
up the matter for the purpose of having the sale set aside. Accordingly,
Mahavirprasad filed Suit No.218/73. Since Mahavirprasad had taken the lead,
Bajaranglal was supporting him. He was advised not to file a written statement
in Suit No.218173, because he accepted whatever Mahavirprasad had said in
B examination-in-chief. In Bajaranglal's written statement in the Suit No.118/
73, he pleaded that he was adopting whatever had been said by Mahavirprasad
in the Suit No.218/73 filed by him and also in Mahavirprasad's written
statement in Suit No. 118173 "to the extent of showing and proving that the
plaintiff had no title and interest in respect of suit property''. All this material
t
was correctly analysed by the learned single Judge who dr ~w justified
C conclusions therefrom. Unfortunately, the Division Bench, without proper
appreciation, has interfered by misdirecting itself.

Illegality of Sale
The sale certificate has been issued under section 206 of the BMC Act.
D Sub-section (6) thereof provides that, after the sale of the immovable property
as aforesaid, the Commissioner shall put the person declared to be the purchaser
in possession and shall grant him a certificate to the effect that he has purchased
the property to which the certificate refers. The evidence led by the plaintiff
merely shows that Janardan Dhuri was the highest bidder. The records
produced by BMC show that Janardan Dhuri was the highest bidder. If that
E be so, there is no acceptable explanation as to how the sale certificate could
have been issued in the name of plaintiff Satyavati for she did not participate
in the bid at the auction sale; much less was she the highest bidder. The
Division Bench has made a very curious finding that "the sale certificate was
issued in favour of the plaintiff by the Corporation and was duly registered".
F We must say that this finding is totally without basis. The sale certificate ex-
facie shows that it was given in the name of plaintiff Satyavati and there is
no record in the BMC books that the plaintiff was registered as the highest
bidder nor as a purchaser in the auction sale. Neither the plaintiff Satyavati,
Janardan Dhuri, nor any competent officer of the BMC entered the witness
box to explain this discrepancy as to how the sale certificate was issued in
G the name of Satyavati when the highest bidder was Janardan Dhuri, who did
not even claim to have bid as an agent of Satyavati. It is only in the plaint
that the plaintiff for the first time claimed that she had paid the entire price
of the auction sale. This was an averment in the plaint which was not
substantiated by any evidence. Nonetheless, the Division Bench facilely
H accepted this averment and held that the sale certificate was issued in favour
B.S. RUIA v. S.N. RUIA [SRIKRISHNA. J.] 411
of the plaintiffasjanardhan Dhuri was the highest bidder and because he was A
# in the employment of Ramprasad, the certificate of the sale could be in the
name of Satyavati and it conveyed her good title. To say the least, the reasoning
appears to be faulty.
We are also unable to accept the reasoning of the Division Bench that
merely because the certificate of sale had been issued in the name of the B
plaintiff, it was conclusive of the title of the plaintiff and could not be
impeached and that it was for the defendants to defend their possession. In
the first place, there is no provision in the BMC Act or Regulations for
conclusiveness of the certificate of sale. Secondly, the analogy drawn by the
Division Bench with a court sale is wholly misconceived. Thirdly, even
assuming that such a conclusiveness or presumption of sale is there, it can c
only arise if it is shown that the certificate is issued strictly in accordance
with Section 206 and the Regulations, which was not the case here. In these
circumstances, where there is no compliance with the law, we are unable to
appreciate the reasoning of the Division Bench, nor its conclusion, that the
certificate of sale conveyed good title to Satyavati. We are in agreement with D
the view expressed by the learned single Judge that the sale was ab initio
void and that the certificate of title was bad and null and void for complete
;r· violation of the provisions of the BMC Act and Regulations made thereunder.
In the circumstances of the case, and upon overall evaluation of the
evidence on record, we are satisfied that the conclusions drawn by the learned
E
single Judge were perfectly justified and in accordance with law. The Division
Bench erred on all counts in interfering with and setting aside the judgment
of the learned single Judge.
In the result, we allow this appeal, set aside the judgment of the Division
Bench and affirm the Judgment of the learned single Judge.
F
In the circumstances of the case the 8th respondent shall pay a sum of
~I(
Rs. 50,000 as costs to the appellant

V.S.S. Appeal allowed.