1 2025:CGHC:52995 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 98 of 2012 1 - Ramkripal S/o Balkrishna Jaiswal Aged About 56 Years R/o Village Akhradand, Tahsil- Khadgawan, District- Koriya, Chhattisgarh. ... Appellant(s) versus 1 - Distt. Cooperative Agriculture And Rural D Rural Development Bank Limited, Ambikapur, District- Surguja, Chhattisgarh. 2 - Brach Manager, District Cooperative Agriculture And Rural Development Bank Limited Branch Manendragarh, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 3 - Sonsai S/o Buddhu Dhanuhar R/o Village Ratanpur, Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 4 - Kariman S/o Suddhu Dhanuhar R/o Village Ratanpur, Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 5 - 5 A Somar Sai S/o Late Jawahar Aged About 40 Years R/o Village Ratanpur, Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 6 - 5 B Ram Singh S/o Late Jawahar Aged About 35 Years R/o Village Ratanpur, Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 7 - 5 C Chain Singh S/o Late Jawahar Aged About 32 Years R/o Village Ratanpur, SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.12.17 11:48:29 +0530 2 Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 8 - 5 D Ramvishal S/o Late Jawahar Aged About 29 Years R/o Village Ratanpur, Tahsil- Khadgawan, District- Koriya, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. D. N. Prajapati, Advocate For Respondent No. 1 and 2 For Respondent No. 5A to 5D : : Mr. Sunil Tripathi, Advocate Mr. Sanjay Patel, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 30.10.2025 1. The instant first appeal has been filed by the appellant who was the plaintiff in Civil Suit, against the impugned judgment and decree dated 30.04.2012 passed by learned Second Additional District Judge, Manendragarh, Dist- Koriya, in Civil Suit No. 34-A/2011, whereby the Civil Suit filed by the plaintiff for possession of the suit property of Khasra No. 760, Area- 0.71 Hec. And Khasra No. 785, Area- 1.04 Hec. situated at Village- Ratanpur, Tahsil- Khadgawa, Dist- Koriya and in alternative recovery of Rs. 56,620/- along with the interest, has been dismissed. 2. The status of the parties are being taken as their status shown in the suit. 3. The plaintiff had filed the Civil Suit against the defendants on 03.12.2010 with the pleadings that the father of the defendant Nos 3 to 5 had mortgaged the suit properties with the defendants No. 1 and 2 (Bank). When the father of the defendants No 3 to 5 failed to repay the 3 loan amount, the suit property was auctioned by the defendants No 1 & 2 on 28.01.1995. The plaintiff being the highest bidder had purchase the property on auction and on 01.06.1995, the sale certificate has been issued in his favour and he has deposited the entire amount of Rs. 52,000/-. He got his name mutated in the revenue records and came into possession of the same. At that time, no objection was raised either by the father of the defendants No. 3 to 5 or by defendants No. 1 and 2 themselves. In the year 2006, a proceeding under Section 170 -B of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred as “the Code of, 1959”) were initiated by the Sub Divisional Officer, Revenue, Khadgawa, on the report submitted by the Patwari that the plaintiff is in possession of the suit land who is non- ab-original tribe. The plaintiff had replied there that he purchased the suit property in auction from the defendant No. 1 & 2 and a sale certificate has also been issued in his favour and his name has been mutated in the revenue records. The Sub Divisional Officer, Revenue, Khadgawa, passed the order on 09.02.2007 against the plaintiff and the auction proceeding and sale certificate issued in favour of the plaintiff was declared as null and void and ordered for re-mutation of the names of defendants No. 3 to 5 in the revenue records. It was held by the Sub Divisional Officer, Revenue, Khadgawa, that as per the provisions of Section 165 (7) of the Code of, 1959, before the auction proceeding, the permission from the District Collector was required to be obtained and no permission was obtained by the Bank. It was also pleaded that as per the provisions of Section 165 (9) of the Code of, 1959, the land of ab-original tribes can be put to auction without any prior permission of the District Collector and the 4 provisions of Section 170 B of the Code of, 1959 is not applicable in the bank auction proceedings. It is also pleaded that pursuant to the order dated 09.02.2007, with the help of police persons and Patwari, the plaintiff was dispossessed from the suit land on 02.07.2010 and therefore, the plaintiff is entitled for refund of his amount along with the interest. On 20.07.2010, the plaintiff served a legal notice to the defendants No. 1 and 2, in reply to that notice, the defendants no. 1 and 2 have stated that he ought to have informed the Bank about the proceeding initiated by the Sub Divisional Officer, Revenue, Khadgawa and thus, the plaintiff has filed the suit for possession of the suit property from defendants No. 3 to 5 and in alternative, he claimed refund of his amount from the defendant No. 1 and 2 along with other expenses and interest. 4. After service of summons upon the defendants, the defendants No. 3 to 5 were remained ex-parte, however, the defendants No. 1 and 2 have filed their written statement. The defendants No. 1 and 2 denied the plaint averment and pleaded that the father of the defendants No. 3 to 5 have mortgaged their property on 22.04.1977 and obtained loan from the Bank and since, they have not repaid the loan amount, the suit property was auctioned in the process of recovery of amount of the Bank. In the proceeding under Section 170 -B of the Code of, 1959, they have not been made as a party-non complainant by the Sub Divisional Officer, Revenue, Khadgawa. The provisions of Section 170- B of the Code of, 1959 is not applicable in the recovery of loan proceeding and the proceeding itself is void. The notice issued by the plaintiff has been replied by the defendants No. 1 and 2 (Bank), there was no condition in the sale certificate issued by the Bank that if any 5 defect would be pointed out in the sale certificate or if the land was revert to the original owner, the Bank will refund the amount to the plaintiff. The Bank has correctly auctioned the property and sold it in auction proceeding and there is no fault on the part of the Bank and they are not entitled to refund the amount to the plaintiff. 5. On the basis of the pleadings made by the parties, the learned trial Court is framed the following issues which are reproduced hereinbelow:- 1- D;k xzke & jruiqj ] rglhy & [kMxoka ftyk dksfj;k es izfroknh dzekad&3 ls 5 ds firkx.k ds uke ls lkfeykrh Hkwfe [kljk uacj&760]785 dze’k% jdck 0-71 ,oa 1-04 gs- Hkwfe jgh gS]\ 2- D;k izfroknh dzekad &3ls 5 ds firkx.k ds }kjk fy;s x;s _.k ds cnys izfroknh dzekad &1o2 ds dk;kZy; esa mDr Hkwfe dks jsgu j[kk x;k Fkk\ 3- D;k izfroknh dzekad&3ls 5 ds firkx.k ds }kjk izfroknh dzekd &1o2 ls fy;s x;s _.k ij j[kh xbZ mijksDr oknxzLr Hkwfe tks jsgu esa j[kh xbZ Fkh _.k dh jkf’k vnk ugha djus ds dkj.k mDr Hkwfe dks _.k dh jkf’k olwyh gsrq uhyke dh xbZ gS\ 4- D;k oknh ds }kjk mijksDr oknxzLr Hkwfe dks fnukda 28@01@1995 dks izfroknh dzekad&1o2 ds }kjk mijksDr Hkwfe uhyke djus ij mPpre cksyh 52 gtkj yxkdj uhykeh dzsrk dk gd izkIr fd;k gS\ 5- D;k oknh dks izfroknh dzekad &1o2 }kjk mijksDr oknxzLr Hkwfe uhykeh es mPpre cksyh yxkus ds dkj.k oknh ds i{k esa fodz; izek.k i= izfroknh dzekad&1o2ds }kjk tkjh fd;k x;k gS\ 6- D;k 15@6@1995 dks oknh ds i{k es mijksDr Hkwfe ukekarfjr gksdj oknh ds uke ls _.k iqfLrdk Hkh cu x;k gS\ 7- D;k vuqfoHkkxh; vf/kdkjh jktLo ds }kjk 9@2@ 2007dks fnukd 28@01@1995 dks dh xbZ oknxzLr Hkwfe dh uhykeh dks /kkjk 170 [k Hkw& jktLo lfagrk dk izdj.k ekurs gq, uhykeh j)a dj mijksDr oknxzLr Hkwfe dks izfroknh dzekad &3]4 ,oa 5ds i{k esa gLrkraj.k vkns’k ikfjr fd;k gS\ 8- D;k fnukad 28@01@1995 dks dh xbZ xbZ uhykeh dk;Zokgh voS/k jgh gS\ 9- D;k izfroknh dzekad &1o2ds }kjk fy;s x;s _.k dh olwyh gsrw fd;s x;s uhykeh dk;Zokgh dks /kkjk 170 [k Hkw&jktLo lafgrk ckf/kr ugha djrh gS\ 10- D;k oknxzLr Hkwfe ls oknh dks 2@7@2010dks csn[ky dj fn;k x;k gS\ 6 11- D;k fnukad 2@7@2010dks oknxzLr Hkwfe ls oknh dks csn[ky djus ls oknh izfroknh dzekad &1 o 2 laas uhykeh dh jkf’k 52gtkj :i;s mUgsa nsus ,oa U;k; ‘’kqYd ,oa ml ij 12 izfr’kr okf"kZd C;kt dh nj ls 56620@ :i;s ikus dk vf/kdkjh gS ,ao vU; vuqrks"k Hkh ikus dk vf/kdkjh gS\ 12 vU; lgk;rk ,oa O;;\ 6. The learned trial Court after appreciation of the evidence led by the parties, comes into conclusion that the suit property was mortgaged by the father of the defendants No. 3 to 5 with the defendant Nos 1 and 2 (Bank). In non-payment of the loan amount, the suit property was auctioned by the Bank and the plaintiff had purchased the suit property in the Bank auction proceeding on 28.01.1995 being the highest bidder and purchased the same for the consideration of Rs. 52,000/-. Sale certificate was also issued in favour of the plaintiff and his name has also been mutated in the revenue records. In the subsequent proceeding, under Section 170-B of the Code of, 1959, the Sub Divisional Officer, Revenue, Khadgawa, has declared sale transaction void and ordered for reversion in the land of defendant Nos. 3 to 5. The learned trial Court has also held that the auction proceeding held on 28.01.1995 was illegally as the same was conducted without prior permission of the District Collector which is required under Section 165(7) of the Code of, 1959 and since, the plaintiff had not challenged the order dated 09.02.2007 passed by Sub Divisional Officer, Revenue, Khadgawa in any higher forum and therefore, he is not entitled for refund of his amount which he has paid in the auction proceeding and thereby, the learned trial Court has dismissed the suit filed by the plaintiff which is under challenge in the first appeal. 7. Learned counsel for the appellant would submit that the plaintiff had 7 purchased the suit property in Bank auction and as per the provisions of Section 165 (9) of the Code of, 1959, the provisions of Section 170 - B of the Code of, 1959 is not applicable in the Bank auction proceeding. The proceeding initiated by the Sub Divisional Officer, Revenue, Khadgawa under Section 170-B itself is void proceeding, since, the plaintiff was considered is to be a void proceeding, on own wisdom, he has not not challenged the order dated 09.02.2007. When he was dispossessed from the suit property, pursuant to the order dated 09.02.2007 passed by Sub Divisional Officer, Revenue, Khadgawa on 02.07.2010, he served a legal notice to the defendant No. 1 and 2 and ultimately filed the suit on 03.12.2010. The plaintiff was the bona fide purchaser and it is only defendant Nos 1 and 2 (Bank) to complete the entire legal proceeding whether the prior permission from the Collector was required or not. When the defendant No. 1 and 2 put the suit property in auction and property was auctioned on 28.01.1995. The Bank should conveyed all the liabilities of transactions, he cannot escape from his liability that the plaintiff has not informed about the proceeding of Section 170-B of the Code of, 1959. He would also submit that the father of the defendants No. 3 to 5 have never challenged the auction proceeding and even the defendants No. 3 to 5 has not claimed for reversion of their land, however, the proceeding under Section 170-B of the Code of, 1959 was initiated on the report submitted by the Patwari. The plaintiff was not at any fault in purchasing the suit land in auction proceeding. After purchasing the suit property in auction proceeding, he got his name mutated in the revenue records and obtained possession of the suit property and therefore, he is entitled for the relief claimed by him in the suit. 8 8. On the other hand, learned counsel appearing for the defendants No. 1 and 2 opposes the submissions made by learned counsel for the appellant and have submitted that since, the plaintiff has not informed about the proceeding of Section 170-B of the Code of, 1959, to the Bank and has not filed any appeal against the order dated 09.02.2007 passed by Sub Divisional Officer, Revenue, Khadgawa, he is not entitled to any relief. He would also submit that had the plaintiff informed the proceeding to the Bank or challenged the order dated 09.02.2007, no adverse order would have been passed against him and there would be no situation arises which is subject matter of the suit. The learned trial Court has passed the judgment and decree which is absolutely justified and the plaintiff is not entitled for any relief. 9. I have heard learned counsel for the parties and perused the record of the trial Court. 10. The purchase of the suit property by the plaintiff in the auction proceeding held on 28.01.1995, issuance of sale certificate, mutation of plaintiff’s name in the revenue records and its possession, initiation of the proceeding under Section 170-B of the Code of, 1959, order dated 09.02.2007 passed against the plaintiff and dispossession of the plaintiffs from the suit property in execution of the order dated 09.02.2007 from the suit land are not in dispute in the present case. The only issue remains in the present appeal is that whether the plaintiff is entitled for decree of possession or not, alternatively, entitled for refund of his amount deposited with the Bank under the sale transaction of auction proceeding or not. The order dated 09.02.2007 is the hurdle on the way of the plaintiff. The order dated 09.02.2007 9 passed by Sub Divisional Officer (Revenue), Khadgawa, has been filed by the plaintiff as Exhibit- P/9 in the present case. It transpires from the order that on the report of the concerned Patwari, the proceeding was initiate by the Sub Divisional Officer (Revenue), Khadgawa, and the SDO has considered that before putting the property of ab-original tribe in auction proceeding, the prior permission from the District Collector was required as provided under Section 165 (7) of the Code of, 1959 which was not done by the defendant Nos 1 and 2 (Bank) and therefore, the transfer of the property in favour of the non-ab-original tribe is vitiated and declared the said transaction void while invoking the power of the Code of, 1959. 11. It is necessary here to notice the provisions of Section 165 (7) of the Code of, 1959 which is read as under:- 7. Notwithstanding anything contained in sub-section (1) or in any other law for the time being in force- (a) where the area of land comprised in a holding or if there be more than one holding the aggregate area of all holdings of a bhumiswami is in excess of five acres of irrigated or ten acres of unirrigated land, then only so much area of land in his holding or holdings shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land; (b) no land comprised in a holding of a bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) shall be liable to be attached or sold in execution of any decree or order; (c) no receiver shall be appointed to manage the land of a bhumiswami under Section 51 of the Code of Civil Procedure, 1908 (V of 1908) nor shall any such land vest 10 in the Court or any receiver under the Provincial Insolvency Act, 1920 (V of 1920), contrary to the provisions of clause (a) or clause (b) : Provided that nothing in this sub-section shall apply where a charge has been created on the land by a mortgage. (7-a) Notwithstanding anything contained in sub-section (1), no bhumiswami specified in Section 33 of the Chhattisgarh Bhoodan Yagna Adhiniyam, 1968 (No. 28 of 1968) shall have the right to transfer any interest in his land specified in the said section without the permission of the Collector. (7-b) Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub-section (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing. 12. The claim of the plaintiff is that as per Section 165 (9B) of the Code of, 1959, the provisions of Section 165 is not applicable in the recovery proceeding of loan which was obtained by the land owner from the commercial Bank for the purposes of the agricultural work. Even otherwise, the proviso of Section 165(7) provides that the provisions of Section 165 (7) would not be applicable where the property was charged while mortgaged. In the present case, the suit property was mortgaged with the defendant Nos. 1 and 2 (Bank) by the father of the defendant Nos 3 to 5. From the provisions of Section 165 (7) and Section 165 (9) of the Code of, 1959, it is quite vivid that in the Bank auction proceeding, when the property was mortgaged with the Bank and it was put to auction for sale on non-payment of the loan amount 11 by the borrower, the provisions of Section 165 (7) of the Code of, 1959 is not applicable and the prior permission of the District Collector is not required in such Bank auction proceeding. 13. Although, the provisions of Section 165 (7) of the Code of, 1959 is not applicable in the Bank auction proceeding, yet the Sub Divisional Officer, Revenue, Khadgawa, has passed the order under Section 170- B of the Code of, 1959. The fact remains that the order dated 09.02.2007 is passed by Sub Divisional Officer, Revenue, Khadgawa has not been challenged in any higher forum and even in the present suit, the plaintiff has not prayed for declaring the said order as null and void or not binding upon the plaintiff. In the present suit, the plaintiff has simply prayed for possession of the suit land and alternative refund of his amount. Until and unless, the order dated 09.02.2007 has been challenged by the plaintiff, no relief can be granted in his favour to declare the said order as void and in consequence thereof, the decree of possession of suit property can not be granted in favour of the plaintiff. 14. The plaintiff has examined himself as PW/1 and stated in his examination in chief, as per his plaint averment, he proved the document (Ex-P/1) to (Ex-P/11). In cross-examination, he admitted that he has not informed the order passed by the Sub Divisional Officer, Revenue, Khadgawa, to Bank and has not filed any appeal against that order. He also admitted that he was given possession of the suit land from the sale officer at the time of auction proceeding. 15. PW/2 has stated in his evidence that the plaintiff has purchased the suit property in auction for consideration of Rs. 52,000/- and a 12 certificate has been issued in his favour. In his cross-examination, he stated that when the plaintiff purchased the suit land in auction, he deposited the entire amount with the Bank and the father of defendant No. 3 have received the remaining amount from the Bank after adjustment of the loan amount and they have not raised any objection at the time of Bank auction. 16. PW/3 Madan Lal is also the witness of the same fact and he too has stated that the plaintiff has deposited the amount of sale consideration with the Bank and thus, there is no dispute in the fact that the plaintiff has deposited the entire amount with the Bank pursuant to the auction of the suit property which he purchased in auction being the highest bidder. 17. The defendant Nos. 1 and 2 have examined their officer Uma Shankar Singh as DW/01, who too has admitted that the plaintiff has deposited Rs. 52,000/- as sale consideration of the suit property and the amount of Rs. 20,700/- was adjusted towards loan amount and Rs. 31,300/- was refunded to the Loanee. The plaintiff was in possession of the suit property after purchasing from Bank auction and since, the Bank auction was declared void by the Sub Divisional Officer, Revenue, Khadgawa, and possession was returned back to the defendant Nos. 3 to 5. The plaintiff is not entitled for refund of his amount. In cross- examination, he stated that despite notice issued to the loanee and his LRs when they have not deposited the loan amount with the Bank, the property was auctioned. He admitted that the prior permission from the District Collector was not obtained before the auction proceeding. There is no irregularity in the auction proceeding or registration of the 13 sale certificate in favour of the plaintiff. He further stated that he did not know about the proceeding initiated by the Sub Divisional Officer, Revenue, Khadgawa. He also shown his ignorance about letter dated 27.11.2002 issued by the Sub Divisional Officer, Revenue, Khadgawa. He also did not know about the fact that the information was sought by the Sub Divisional Officer, Revenue, Khadgawa from the Bank vide its letter dated 27.12.2002. He further stated that he did not know about any notice received by the Bank or he represented in the proceeding or not. He admitted that the plaintiff has received a notice to the Bank (Ex-P/4) and they have sent its reply (Ex-P/5). He further admitted that when the defendant Nos. 1 and 2 Bank came into knowledge that the sale certificate issued by the Bank dated 06.01.1995 was declared null and void and possession of the suit property was reverted to its owner, they have not done anything and even they have not started any proceeding to challenge the order passed by Sub Divisional Officer, Revenue, Khadgawa. 18. Apart from the evidence of the parties, it is reflected from the order dated 09.02.2007 passed by Sub Divisional Officer, Revenue, Khadgawa (Ex-P/9), it transpires that:- “----------------------U;k;ky; ds i= dzekad@689@okpd@2002 eusUnsx<+ 27-11-2002ds }kjk fodz; vf/kdkjh lgdkjh Hkwfe fodkl cSad eusUnzx<+ dks Hkstdj ys[k fd;k x;k Fkk fd xzke jruiqj dh Hkwfe [kljk uEcj 760 ,oa 785 ftldk uhykeh fodz; jked`iky tk;loky ds uke vkids }kjk dh x;h gS D;k fodz; ds iwoZ dysDVj dh Lohd`fr yh x;h gS bldhtkudkjh 27-12-2002 izLrqrdjs fdUrqfodz; vf/kdkjh }kjk izdj.k esa bl lEcU/k esa dksbZ Hkh tkudkjh miyC/k ugh djk;h x;h gSA----------------------------” 19. When the defendant Nos. 1 and 2 have auctioned the property of the defendant Nos 3 to 5 for non-payment of loan amount, before issuing 14 the notice for auction, it is expected that they would have completed the entire proceeding necessary under the relevant rules for putting the property in auction of the party. It is not for the plaintiff or the bidder to go through the entire process under which the property was put to auction and the bidders were normally under the bona fide assurance that the property auctioned by the Bank is free from all incumburance. When the Bank was noticed by the Sub Divisional Officer, Revenue, Khadgawa on 27.11.2002, it was expected from the Bank to reply the notice or to take action in the matter and to defend the interest of the plaintiff as well as Bank but they did not do so. Therefore, the action taken by the Bank is not sufficient to absolve them from their liability particularly when the amount was admittedly deposited with the Bank pursuant to the auction of the land, however, the Sub Divisional Officer, Revenue, Khadgawa has declared the auction proceeding as void due to some legal impediment and therefore, the plaintiff being the bona fide purchaser of the land is entitled at least for refund of his amount back from the Bank. There is no sufficient reason assigned by the learned trial Court, as to why, the plaintiff is not entitled for refund of his amount back from the Bank. By only saying that since, the plaintiff has not challenged the order dated 09.02.2007 passed by Sub Divisional Officer, Revenue, Khadgawa in any higher forum, he is not entitled for refund to his amount, in the opinion of this Court is not correct. 20. Accordingly, the appeal filed by the plaintiff/ appellant is partly allowed. The finding recorded by the learned trial Court with respect to issue No. 8, 9, 11 and 12 are set aside. The plaintiff is held entitled for refund of his amount of Rs. 52,000/- which was paid by him in auction 15 proceeding with the Bank, Rs. 4,620/- which was the amount spent by him in registration of the sale certificate. The plaintiff is also entitled for damages of Rs. 25000/- from the defendant Nos. 1 and 2 Bank. The plaintiff is also entitled for interest @ 7 % per annum from the date of filing of this suit till its realization on the entire amount awarded by this Court. 21. The defendant Nos 1 and 2 shall bear the cost of the proceeding. 22. The appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge sagrika