# [2004] 3 S.C.R. 373 - **Citation:** [2004] 3 S.C.R. 373 - **Court:** Supreme Court of India - **Decided:** 2004-03-23 - **Case number:** Civil Appeal No. 5293 of 1993 - **Bench:** S. Rajendra Babu, B.N. Srikrishna, G.P. Mathur - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2004-3-s-c-r-373-19772 - **Pages:** 39 ## Headnote B Code of Civil Procedure, 1908: Order ./I Rule ./-Re1·ersal of decree-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, 1888But Division Bench held that auction-sale could not be challenged by way of defence in the suit.filed by the plaintiff for recove1y of possession-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. 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 F 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..-.. B any defence was concerned Municipalities: Bombay Municipal Corporation Act, 1888: Section 206(6)-Sale of property-Certificate of auction-sale-Issued in favour of plaintiff-Record showed one J as highest bidder-J did not claim to be an agent of plaintiff-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 of the 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 of the certificate of saleEven 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 ## Text _Characters 0–39,804 of 96,863. This is a partial read: ask again with offset=39804 for what follows._ 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 of decree-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, 1888But Division Bench held that auction-sale could not be challenged by way of defence in the suit.filed by the plaintiff for recove1y of possession-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. 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 F 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..-.. B any defence was concerned Municipalities: Bombay Municipal Corporation Act, 1888: Section 206(6)-Sale of property-Certificate of auction-sale-Issued in favour of plaintiff-Record showed one J as highest bidder-J did not claim to be an agent of plaintiff-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 of the 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 of the certificate of saleEven 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. 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 "f . ·~ 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 B gr~nted leave and his SLP was converted into a Civil Appeal. But the SLP 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 appellantdefendant 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 H Chand, I 19641 4 SCR 647, Pandit Shri Chand v. Mis. Jagdish Parshad Kishan 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. D 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. 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 noncomplianc·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 F G H 4. If the title claimed by the plaintiff was a nullity and wholly void, 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 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. 5. Here, the plaintifrs suit is for ejection of the defendant and for •• ' . • B.S. RUIA v. S.N. RUIA 377 .Al possession of the suit property. She must succeed or fail on the title that A 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, I 19651 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 D of Section 206 of the Bombay Municipal Corporation Act, 1888 and the Regulations made thereunder is fully justified and brooked no interference -rin appeal. 1402-B-D] 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 G Vol. X 25 (PC), referred to. 6.3. The defence raised by the appellant was quite comprehensive. ly He had challenged the plai.ntifrs title on the basis of the alleged auction sale as a nullity on the grounds of ultra vires, lack of jurisdiction, nonservice of demand notice on all heirs/co-owners, breach of mandatory H provisions of law and also perpetration of fraud, the particulars of which ,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. B not have been challenged by the appellant after withdrawal of the suit by 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 ~ c have instituted a suit for challenging the auction-sale and the sale 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 D limitation, as far as any defence is concerned, there is no such limitation. 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 F only arise if it is shown that the certificate is issued strictly in accordance 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" ' H Sunil Gupta, Sunil Dogra, Ms. Sayali Phathak for Mis. Suresh A. Shroff B.S. RUIA v. S.N. RUIA ISRIKRISHNA. J.] 379 & Co., for the Appellant. 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 A 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. .'X Facts 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. The family tree of the contending parties is as under : Shivchandrai (D 7.6.71) =Rukmanibai (04) (D 25.12.87) GENEALOGY I I Ramvallabh (D 1939) = Durgabai (D 1990) Haribux Nandkishore (D ,1969) Mahavirprasad+( I daughter) =(Chandrakala) (D 30.6.89) I I I I c D E F (3 (Kai lash I I I (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 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 G 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. 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, f1 Bombay. In 1969, Ramprasad shifted his residence to Juhu Scheme, Ville Y • H Parle, Bombay. 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. In 1969-70, Janardan Dhuri joined the sole proprietorship concern of Ramprasad with trading name "Gorakh Ram Haribux", which had its office D 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 I 0.1.1970. 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 D 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. 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 I~ 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. 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 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 Defendant : No.1 Shashikant Nandkishore Ruia No.2 Mahavirprasad Ramvallabh Ruia No.3 Kailashchand Shivchandrai Ruia No.4 Smc. Rukmanibai Shivchandrai Ruia F F G H A B 384 SUPREME COURT REPORTS 12004] 3 S.C.R. No.5 No.6 No.7 No.8 Shyamsunder Shivchandrai Ruia Ramprasad Shivchandrai Ruia Chandraparkash Shivchandrai Ruia Bajranglal Shivchandrai Ruia 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 E F . 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 coowners of the suit property (i.e. Hari Niwas). 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 nonjoinder of the Municipal Corporation and prayed for dismissal thereof. On 18.9.1973 Bajranglal (D-8) Shyamsunder (D-5) and I