Haji Muqeet Ali Qureshi vs State Of U.P. And Others
2013 Latest Caselaw 6994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgement reserved on 29.10.2013
 
Judgment delivered on 18.11.2013
 
In Chamber
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 975 of 2009
 
Petitioner :- Haji Muqeet Ali Qureshi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Arvind Srivastava
 
Counsel for Respondent :- K.M. Misra,M.Islam,S.C.
 

 
Hon'ble Sanjay Misra,J.

This writ petition arises out of an order dated 22.05.2007 passed in Suit no. 157 of 2006 by the Civil Judge (J.D.), Koil. Aligarh whereby the exparte decree has been set aside on an application filed under Order IX Rule 13 CPC read with Section 151 CPC by a non party to the suit as also the revisional order which has in effect not interfered in the order of the Trial Court by holding that the revision is not maintainable under Section 115 CPC.

The petitioner filed a Suit no. 157 of 2006 before the Civil Judge (J.D.), Koil. Aligarh impleading as defendants the State of U.P. Through Collector, Aligarh and A.D.M. (City) (Ceiling), Aligarh for permanent prohibitory injunction to restrain them from claiming the property in suit as property of the State of U.P. or from dispossessing him. The plaint averments were that the property Khasra no. 513 area 13 Bigha 6 Biswa situate at Begpur Khanjaula near Dodhapur, Pargana and Tehsil Koil, District Aligarh was owned by one Smt. Meera Bashir and others. Of this 1 Bigha (pakka) with a house thereon was transferred to Musheer Ali Qureshi (president of Ashiyana Sahkari Avas Samiti Ltd.) and 12 Bigha 6 Biswa was transferred to Ashiyana Sahkari Avas Samiti Ltd. who came into possession alongwith its members. The cause of action for bringing the suit was when the officials of the A.D.M. City (Ceiling) started taking measurements and threatened to dispossess the plaintiff.

The State defendants put in appearance through counsel but later they stopped attending the proceedings hence an order dated 09.05.2007 was passed by the court to proceed exparte. The suit was then decreed exparte on 22.05.2007.

Adil Bashir, Meera Bashir and power of attorney of Meera Bashir namely Adil Bashir (herein after referred to as applicants) filed an application under Order IX Rule 13 read with Section 151 CPC which was registered as Case no. 147 of 2007 for setting aside the exparte decreed dated 22.05.2007 passed in Suit no. 157 of 2006. These persons were not party in Suit no. 157 of 2006. The averments of

Case no. 147 of 2007 under Order IX Rule 13 CPC were that the applicants were owner of the property and the decree of Suit no. 157 of 2006 dated 22.05.2007 was obtained without impleading the applicants. That the plaintiff of Suit no. 157 of 2006 had fraudulently got his name recorded in the revenue records and proceedings taken by the applicants under U.P. Land Revenue Act are still pending. The documents of acknowledgement of oral gift is forged and was never signed by the applicants and its validity is under consideration in a Suit no. 378 of 2006 pending before the civil court filed by Musheer Ali Qureshi the brother of the petitioner against the applicants regarding 1 Bigha (pakka) which was alleged to be transferred in his favour by the applicants.

The Trial Court by the impugned order dated 21.02.2009 has allowed the application under Order IX Rule 13 read with Section 151 CPC and has setaside the exparte decree dated 22.05.2007 and restored the Suit no. 157 of 2006. The Revision no. 14 of 2009 filed by the petitioner has been rejected on 02.04.2009 by the Incharge District Judge, Aligarh as not maintainable hence this writ petition.

Sri Arvind Srivastava learned counsel for the petitioner has argued that the application under Order IX Rule 13 read with Section 151 CPC was not maintainable since the applicants were not party in Suit no. 157 of 2006 and they had no interest in the property hence they were not aggrieved persons. The application was highly belated and no application for condonation of delay was filed and the revisional court has illegally rejected the revision by a cryptic order whereas the revision was maintainable.

Sri Ravi Kiran Jain learned Senior Counsel assisted by Sri M. Islam learned counsels for the private respondents have argued that the entire proceedings of Suit no. 157 of 2006 were fraudulent and the proceedings relating to the property under the U.P. Urban (Ceiling and Regulation) Act 1976 were manipulated by the petitioner hence they cannot bind the private respondent.

Sri Sanjay Goswami learned Standing Counsel for the State respondents has submitted that in ceiling proceedings the question of surplus land has attained finality against the State hence they have no claim over the land under the U.P. Urban (Ceiling and Regulation) Act 1976 and also in view of its repeal by the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

Affidavits have been exchanged between the parties and with consent of learned counsel for all the parties this writ petition has been heard at length and is

being finally decided.

From the record available in this writ petition it appears that the property involved had under gone litigation before several forums i.e. in ceiling proceedings in mutation proceedings and before the civil court. Before entering into the merits of the impugned orders it appears necessary that the various legal proceedings which have preceded the filing of the restoration application should be noticed to find out the status of the parties pertaining to the property.

(1) Proceedings under the U.P. Urban Land (Ceiling and Regulation) Act 1976 (herein after referred to as the Act 1976);

The original owner Smt. Meera Bashir had filed a revision against the order dated 07.05.1986 passed under Section 8 (4) of the Act 1976 of the Prescribed Authority whereby surplus land to the extent of 53,221.88 square meter was declared in her hands.

The objection was that the land in question being no. 513 and 383 situate in village Begpur Kanjaula is a grove since more than 50 years hence it is outside the purview of the Act 1976.

The revisional authority vide its order dated 04.07.1988 accepted the revision insofar as land bearing no. 513 was concerned and held it did not fall under the category of vacant land but rejected the revision for land bearing no. 383.

Meera Bashir and others then sought permission under Section 26 of Act 1976 to sell some land in land bearing no. 513 to Mansur Alam, Aziz Alam, Hamid-ur-Rehman Khan, Adil Rizwan, Badar Ali Naqvi, Intezar Ahmad, Shabdi, Sayyed Ahmad, Istadar Ahmad, Ashiyana Cooperative Housing Society and Kala Mahal Housing Society which was granted on 04.04.1991 by the Prescribed Authority for an area of 4 Bigha 13 Biswa.

Similar permission under Section 26 of the Act 1976 was sought by Meera Bashir and others to sell 3 Bigha 9 Biswa land from land bearing no. 513 to Mohd. Wasim, Mohd.Vayaj, Wajiha Nasim, Dr. Bismil Islam, Rizwan Begum, Parveen, Shaukat Zahir, R.U. Khan, Mohd. Shakil, Mohd. Kesar Ali, Newton Constructions Co. Pvt. Ltd. and Kala Mahal Housing Cooperative Society which was granted by the Prescribed Authority under Act 1976 on 11.02.1991.

Further permission under Section 26 of the Act 1976 was sought by Meera

Bashir and others to sell 3 Bigha 12 Biswa land from land bearing no. 513 to Rashida Khan, Shamim Ahmad, Ashfiya Khanaun, Mohd. Masood Khadil, Mohd. Mohsin Khan, Mirza Javed Beg, Sannaullah Khan, Zaharia Khan, Ashiyana Cooperative Housing Society, Kala Mahal Cooperative Housing Society, Gunjan Sharma, Ashu Sharma, Suved Zahir and Kamar which was granted on 11.02.1991 by the Prescribed Authority under Act 1976.

Permission was also granted on 11.02.1991 under Section 26 of Act 1976 to Meera Bashir and others to sell 1 Bigha 6 Biswa land from land bearing no. 513 to Naseem Ahmad, Sheikh Suleman, Dr. Shamim Ahmad, Mohd. Wayaz, Mohammad, Shan Mohammad, Jamal Ahmad, Mohd. Ayub, Gunjan Sharma, Ashu Sharma, Ashiyana Cooperative Housing Society and Kala Mahal Cooperative Housing Society by the Prescribed Authority.

Meera Bashir and others were also granted permission to sell 1 Bigha 16 Biswa land from land bearing no. 513 by the Prescribed Authority under Section 26 of Act 1976 to Aftab, A.K. Rudra, M.K. Rudra, C. Rudra, Nazma Naseem, K.T. Nasseem, Tanvir, Azra Yakoob, Mohsin Raza and Ashiyana Cooperative Housing Society on 18.02.1991.

Thereafter by a letter dated 29.07.1992 the Prescribed Authority wrote to the Sub-Registrar, Aligarh not to register any transfer on the basis of his permission granted to Meera Bashir and others since the land was given exemption from Act 1976 on the ground that it was grove land but she was selling it in small plots which would change the nature of the land.

The record indicates that Meera Bashir and others filed Ceiling Appeal no. 30 of 1992 against the letter dated 29.07.1992 of the Prescribed Authority which was rejected on 03.10.1994 as not maintainable by the District Judge, Aligarh (Appellate Authority Act 1976.)

On 10/11.08.1994 the Joint Secretary, State Government wrote to the Prescribed Authority (ceiling) to re-start the proceedings because the land bearing no. 513 is no more in the nature of a grove because all the trees have been cut down. As a consequence there of the Prescribed Authority by his notice dated 23.07.1998 declared an area of 34,172=91 sq. meter as surplus land in the hands of Meera Bashir in land no. 513. Against the said declaration under Section 10 (5) of Act 1976 Meera Bashir filed an Appeal no. 80 of 1998 under Section 33 of the Act 1976 wherein on 03.05.1999 an interim order was passed by the District Judge,

Aligarh.

On 18.03.1999 the Urban Land (Ceiling and Regulation) Repeal Act 1999 was enforced hence the State Government vide its letter dated 07.02.2000 issued to all the Prescribed Authorities in the State directed that all the proceeding under the Act 1976 should be abated under Section 4 of the Repeal Act 1999 and on 04.03.2000 the District Magistrate, Aligarh directed the Vice-Chairman, Aligarh Development Authority to seal all constructions made on land bearing no. 513 and ensure that no further constructions are raised thereon.

Feeling aggrieved Meera Bashir filed a Writ Petition No. 17687 of 2000 (Meera Bashir Vs State of U.P., Prescribed Authority and District Magistrate, Aligarh) praying for quashing of the order dated 10/11.08.1994 and 04.03.2000. This writ petition was allowed on 27.09.2000 by a Division Bench of this court. The order dated 27.09.2000 is itself quoted here under:-

"This petition relates to the Urban Land (Ceiling and Regulation) Act 1976, which was subsequently repealed by Urban Land (Ceiling and Regulation) Repeal Act 1999.

In view of the decision of the Supreme Court in Pt. Madan Swaroop Shrottya Public Charitable Trust Vs State of U.P. and others reported in ALR 2000 (327) we are of the opinion that if actual possession of the land in dispute has not been taken over by the State Government further proceedings under the Urban Land (Ceiling and Regulation) Act 1976 will abate and the impugned orders are quashed.

The petition is hence allowed."

In this writ petition Meera Bashir clearly averred about the transfer of the land by her to various persons and that they have all built houses on the land in question. She had also annexed the various permissions to sell the land granted to her under Section 26 of the Act 1976 as also the sale deeds executed.

Meera Bashir also filed a Writ Petition No. 23175 of 2001 (Meera Bashir Vs State of U.P., Prescribed Authority and District Magistrate, Aligarh) where she assailed the notifications dated 23.04.1996 under Section 10 (3) of the Act 1976 published on 28.04.1996 in the gazette. This writ petition was finally disposed of by a Division Bench of this court on 13.05.2010. The order dated 13.05.2010 is quoted here under:-

"Heard learned counsel for the parties.

Learned counsel for the petitioner states that the controversy raised in the instant writ petition is squarely covered with the judgement of this Court dated 13.11.2009 rendered in Civil Misc.

Writ Petition No.22912 of 2001 (Smt. Amina Khatoon and others Vs. State of U.P. and others) which is admitted by the learned counsel for the respondents.

We are in full agreement with the aforesaid judgement passed by Division Bench of this Court.

This writ petition is finally disposed of in terms of the aforesaid judgement dated 13.11.2009 rendered in Civil Misc. Writ Petition No.22912 of 2001 (Smt. Amina Khatoon and others Vs. State of U.P. and others). No order as to costs."

The writ petition of Amina Khatoon and others mentioned in the above order also related to land bearing no. 513 which is subject matter of this writ petition. In the decision of Amina Khatoon the notification dated 23.04.1996 published on 28.04.1996 under Section 10 (3) of the Act 1976 was considered and the order dated 12.06.2001 passed under Section 26-A(9) of U.P. Urban Planning and Development Act 1973 was quashed. This order dated 12.06.2001 related to encroachment on public land as alleged by the State and the Division Bench recorded the following finding with respect to land no. 513.

"It is averred in the counter affidavit filed on behalf of the respondents that the proceedings were initiated under the provisions of the Act and the competent officer by means of order dated 07.04.1988 declared an area of 31472.91 square meters as surplus land in respect of land in dispute. In view of the statement made by the persons that they shall maintain the fruit bearing trees, the State released the said land, but thereafter they started cutting the fruit bearing trees and made constructions illegally over it. It is further contended that after the publication of the notification under Section 10(3) of the Act in the gazettee dated 17.08.1996, the land vested in the state and even the possession of the land was taken on 27.07.1998 much prior to the coming on the Repeal Act of 1999.

Having heard learned counsel appearing on behalf of the parties and going through the rival contention, we are of the view that it is not in dispute that the petitioners' buildings are existing on the land in dispute and the demolition thereof as ordered by the respondents as well as the impugned order itself proves the possession of the petitioners over the land in dispute. Thus, until the order could be a final declaration before the Repeal Act of 1999 and the possession could be taken over, theorder impugned could not have been passed.

In the result, all the writ petitions succeed and are allowed. The impugned order dated 12.06.2001 in all the petitions is quashed. Order accordingly."

Amina Khatoon and others were the purchasers from Meera Bashir of lands in land no. 513.

Thereafter the Ceiling Appeal No. 80 of 1998 (Meera Bashir Vs State of U.P. & another) under Section 33 of Act 1976 was dismissed by the District Judge, Aligarh on 16.09.2002. In this appeal also Meera Bashir had specifically stated in her affidavit dated 23.12.1998 that she is not owner nor in possession of land no. 513 which has been sold out by her after obtaining permission of the Prescribed Authority under Section 26 of Act 1976.

From the above mentioned proceedings and orders Meera Bashir and others were no more owner of the land and having divested herself by executing registered sale deeds she had no right, title or interest in the land. Her status was that of a stranger to the land.

(2)Proceedings under the U.P. Land Revenue Act;

In Form P-18 (Khewat) the name of Makkan Lal was entered in Column 1 as Lumbardar. In Column 6 alongwith Makkan Lal and others the name of Abdul Bashir Khan was entered over land no. 513 and others. It continued in the Khatauni of 1371 F as Non-ZA land upto 1409 F.

Abdul Bashir Khan & others filed an application dated 29.11.2004 before the Collector, Aligarh for quashing the name of Muqueet Ali (petitioner) from the Khatauni alleging such entry to have been made fraudulently. A report dated 22.12.2004 was submitted by the Tehsildar where upon the Sub Divisional Officer under Section 210 of the U.P. Land Revenue Act directed the name of the petitioner and others to be expunged. The said order dated 27.01.2005 of the Sub Divisional Officer/Tehsildar was challenged by the petitioner in Writ Petition No. 50762 of 2005 (Hazi Muqueet Ali Vs State of U.P and others) which was allowed on 22.07.2005 by the High Court. The order dated 27.01.2005 was quashed and the matter was remanded to the concerned authority to revive the proceedings and permit the petitioner to file his objections and then decide the proceedings.

Upon remand the Tehsildar vide his order dated 28.06.2008 in Case no. 150 under Section 34 of the U.P. Land Revenue Act expunged the name of the petitioner and others from the Khatauni and directed the name of the respondents to be recorded. According to the petitioner he has challenged the order dated 28.06.2008 of the Tehsildar before the Sub-Divisional Officer who has passed a stay order and the matter is still pending.

(3) Proceedings before the Civil Court;

The petitioner filed Suit no. 157 of 2006 (Hazi Muqeet Ali Qureshi Vs State

of U.P. and others) for permanent prohibitory injunction before the Civil Judge (J.D.) Koil, Aligarh. Only State authorities were defendants in the suit. The suit was decreed exparte on 22.05.2007. It related to land no. 513. The basis of this suit was the ceiling proceedings in favour of the petitioner, the affidavit of Meera Bashir and the acknowledgement of oral gift of Meera Bashir.

The petitioner's brother Musheer Ali Qureshi filed Suit no. 378 of 2006 (Musheer Ali Qureshi Vs Meera Bashir and others) relating to house and 1 Bigha (pakka) in land no. 513. This is also a suit for permanent prohibitory injunction. This suit is pending.

In Suit no. 157 of 2006 the respondent no. 4 herein filed an application under Order IX Rule 13 read with Section 151 CPC to recall the exparte decree dated 22.05.2007 and restore the suit. The application has been allowed and the Revision no. 14 of 2009 has been rejected on 02.04.2009.

While allowing the application under Order IX Rule 13 read with Section 151 CPC the Trial Court has reasoned as under:-

(i) although the petitioner claims that Meera Bashir had orally gifted the property to the petitioner but the said Meera Bashir has denied it and the dispute regarding the land has gone upto the High Court even prior to filing of Suit no. 157 of 2006.

(ii) admittedly Meera Bashir was not made party in Suit no. 157 of 2006.

(iii) the dispute of title between the petitioner and Meera Bashir can be decided on merits only in the suit itself and not in an application under Order IX Rule 13 CPC or under Section 151 CPC.

(iv) admittedly Meera Bashir was earlier owner of the property and the dispute regarding oral gift had not yet been finally decided.

(v) Meera Bashir could maintain her application under Order IX Rule 13 read with Section 151 CPC against the exparte decree and no separate suit was required to be filed by her to set aside the exparte decree although she was not party in the suit.

In the revision filed by the petitioner against the order of the Trial Court the revision was rejected as not maintainable and the revisional court while doing so observed that the question whether Meera Bashir and others are aggrieved persons cannot be decided in a revision under Section 115 of the Code of Civil Procedure.

It also held that a person who was not party in a suit where an exparte decree had been passed can maintain an application under Order IX Rule 13 read with Section 151 of the Code of Civil procedure.

From the pleadings of the parties and the facts and circumstances as narrated herein above the following situation has emerged:-

A). Meera Bashir and others were the recorded owners of the land in question.

B). After enforcement of the U.P. Urban Land (Ceiling and Regulation) act, 1976 she applied for permission to sell the land under Section 26 of the Act, 1976.

C). Individual permissions were granted by the Prescribed Authority under the Act 1976 and sales were made to various persons.

D). Upon notices issued to her holding surplus land she contested the ceiling proceedings and denied that she was owner of the land.

E). She filed Writ Petition No. 17687 of 2000 against order of the State Govt. directing that since the nature of the land had changed from a grove to residential it should be re-determined as surplus and exemption from the Act 1976 earlier granted be withdrawn. The writ petition was allowed on 27.09.2000 in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 as abated.

F). She filed Writ Petition No. 23175 of 2001 against Notification dated 23.04.1996 under Section 10 (3) of the Act, 1976 which was disposed of on 13.05.2010 in terms of judgement dated 13.11.2009 rendered in the case of Amina Khatoon and others.

G). Amina Khatoon and others Writ Petition No. 22912 of 2001 with connected writ petitions related to the same land purchased by them and in their writ petitions it was held that their constructions were standing over the land in question, hence they were in possession therefore, in view of the Repeal Act of 1999 the State could not take possession of the land by terming it as an encroachment on State land. The writ petitions were allowed and Amina Khatoon and others were found in possession.

H). Meera Bashir's Ceiling Appeal No. 80 of 1998 was dismissed on 16.09.2002 for the reason that other interested persons in the land had

obtained orders from the Higth Court regarding their interest in the land hence there is no necessity to decide anything afresh.

I). Proceedings under Section 34 of the U.P. Land Revenue Act whereby the name of Meera Bashir and others had been expunged from the revenue records was set aside by the High Court on 22.07.2005 in Writ Petition No. 50762 of 2005 and after remand the matter is pending before the Sub-Divisional Officer who has stayed the order dated 28.06.2008 of the Tehsildar.

From the aforesaid proceedings the status of Meera Bashir and others was no more as owner of the land. She had no right, title or interest left therein. It is not her case that she has filed any proceeding against the sale deeds executed and registered of the land. Her status qua that land was that of a stranger.

On the other hand the vendees of Meera Bashir and others matured their rights as owners and their sale deeds are not in challenge till date at any forum whatsoever. The vendees are in possession with their constructions existing there on and such status of the vendees has obtained finality upto the High Court.

In light of the status of the parties as narrated above relating to the land bearing No. 513 the validity of the impugned orders has to be seen. The application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure was made by a non party to recall the exparte decree. The exparte decree was against the State respondents and not against any private party. The suit itself was only against the State respondents praying that the State respondents be restrained from interfering in the plaintiffs' possession. Admittedly the State had lost the proceedings under the Act 1976 up to the High Court when the order dated 27.09.2000 was passed in Writ Petition No. 17687 of 2000 filed by Meera Bashir. This writ petition no. 17687 of 2000 was filed by Meera Bashir since she was the noticee under the Act 1976 being the original owner and the orders dated 10/11.08.1994 and 04.03.2000 passed by the State Govt. attempted to withdraw the exemption given to the land from the Act 1976. The orders of the State Govt. were passed only for the reason that the land had been granted exemption from the Act 1976 since it was a grove but had been changed and sold as residential plots where constructions had been raised. Meera Bashir's averments in her writ petition were also that she is no more owner of the land since it has been sold to various persons in plots.

Therefore, when Meera Bashir's writ petition no. 17867 of 2000 was allowed on 27.09.2000 in light of the Repeal Act 1999 it was clear that neither the State had taken possession of the land nor paid compensation in proceedings under the Act, 1976. It was the State which lost all claims to the land under Act 1976 and could not claim any interest therein. Meera Bashir did not get any title by this order. Hence the Suit No. 157 of 2000 was only against the State.

By the order passed in Writ Petition No. 17687 of 2000 Meera Bashir did not get any title over the land nor any such adjudication was done on this score. She herself had pleaded in the writ petition that she is no more owner of the land since she had sold it as residential plots to various persons after obtaining permission from the Prescribed Authority under Section 26 of Act 1976. Under such circumstances Meera Bashir and other were not owners of the land after they sold it and although when earlier notices were issued under the Act 1976 she was at that time the owner duly recorded but later lost all interest in the land by virtue of the sale deeds. As such Meera Bashir had no right title or interest left in the land and no interpretation can be given to the order passed in Writ Petition No. 17687 of 2000 so as to hold that Meera Bashin and others developed any right title or interest in the land by virtue of such order. Therefore, when the State respondents tried to interfere in the possession of the petitioner over the land the petitioner filed the Suit No. 157 of 2006 against the State whereas the erstwhile owner Meera Bashir and others were not required to be made party in such suit.

A person having no interest or even a prima facie claim over a property which is subject matter of a suit cannot maintain an application to recall the decree passed in the suit between two other parties. Such person would be a stranger to the property and the suit itself. In a suit issues are framed on the dispute between the parties regarding their grievance against each other and in the present suit the petitioner had a grievance against only the State respondents.

The other writ petition of Meera Bashir and others being Writ Petition No. 23175 of 2001 was filed against the Notification dated 23.04.1996 issued under Section 10 (3) of the Act 1976. It was decided in terms of another Writ Petition No. 22912 of 2001 (Amina Khatoon and others Vs. State of U.P.). The notification under Section 10 (3) of the Act 1976 was one where it was declared that the land shall be deemed to have vested absolutely in the State Govt. free from all encumbrances. The Writ Petition No. 22912 of 2001 was decided alongwith other writ petitions and they related to the land which is subject matter herein. Those

petitioners were purchasers of the land and had assailed the notification under Section 10 (3) of the Act, 1976. The writ court allowed all those writ petitions on 13.11.2009 holding therein that they were in possession of the land and had their constructions existing thereon. Hence when the Repeal Act 1999 was enforced the State could not claim it to be State land nor could it initiate action under Section 26-A (9) of the U.P. Urban Planning and Development Act, 1973 purporting it to be an encroachment on public land.

The decision in the case of Amina Khatoon & others alongwith other writ petitions clearly establishes their possession and constructions over the land. The fact that Meera Bashir and others also filed a writ petition against the notification under Section 10 (3) of the Act 1976 and got it decided in terms of the decision in Amina Khatoon does not at all indicate that Meera Bashir and others were in possession of the land to the exclusion of her vendees i.e. Amina Khatoon and others. Meera Bashir and others had sold out the land earlier with the permission of the Prescribed Authority under the Act 1976 hence the disposal of her Writ Petition No. 23175 of 2001 cannot be interpreted to hold that she had obtained any right title or interest in the land in question which admittedly was sold out much prior to the notification under Section 10 (3) of the Act, 1976. In fact the decision of the Devision Bench in the writ petition of Amina Khatoon and others is a further proof that Meera Bashir and others had no possession or right, title or interest in the land. She having no right, title or interest in the land and not being in possession thereof was not an aggrieved person and could not claim to be made party in the suit between the petitioner and the State which was not a title suit and had been decreed exparte against the State.

Apart from the decision in the above referred two writ petitions Meera Bashir had also filed an Appeal No. 80 of 1998 under Section 33 of the Act, 1976. This appeal was dismissed on 16.09.2002. The reason for dismissing the appeal was that there is nothing left to be decided afresh in view of the orders passed by the writ court in the petitions filed by other interested persons. Clearly the purchasers had filed writ petitions which were decided in their favour (Amina Khatoon and connected writ petitions). This order of the appellate court also establishes that Meera Bashir and others had no further interest in the land which had been sold off much earlier. Meera Bashir and others became strangers to the property and it is not their case that they have at any forum assailed the sale deeds executed after obtaining permission from the Prescribed Authority under the Act,

1976.

Insofar as the proceedings under Section 34 of the U.P. Land Revenue Act are concerned, they are not title proceedings but relate to mutation of name in the Revenue records. In any case such proceedings are still pending before the Revenue Authorities/Court and there is no finality attached to them as yet. Therefore, no further discussion is required on such mutation proceedings in this writ petition.

The issue of an oral gift has been raised by one party and denied by the other. Meera Bashir and others say that there was no such oral gift nor it was acknowledged by her. Having so denied the oral gift it appears that she has not assailed it nor any action has been taken thereupon at any forum. An observation has been made in the impugned order of the trial court that such an issue cannot be decided in an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure and can be decided in the suit itself. This is one of the reasons for allowing the application. This view of the Trial Court could have been accepted only if the applicants were found to be aggrieved persons against the exparte decree. No finding has been recorded that Meera Bashir and others were aggrieved persons. When the entire proceedings held earlier under the Act 1976 found that Meera Bashir and others had sold the land after due permission under Act 1976 then they had no interest left in the land. On that score clearly Meera Bashir and others were not aggrieved persons.

Now Meera Bashir and others have taken a totally new stand to say that no oral gift or its acknowledgment was made. This is a stand now taken which appears to be an after thought and not a bonafide stand. When land was sold she raised no objection. When constructions were raised thereupon no objection was raised. When her writ petition was decided interms of the writ petition of her vendees she raised no objection. The rights of her vendees have obtained sanction under orders of the writ court and it has not been assailed by her till date. She is not in possession admittedly. Hence she was not an aggrieved person nor she had any right title or interest left in the land. The Trial Court ought to have seen this vital issue before cryptically allowing the application and setting aside the decree in Suit no. 157 of 2006.

The revisional court in the impugned order has observed that the issue whether Meera Bashir and others are aggrieved persons or not cannot be decided

in a revision under Section 115 of the Code of Civil Procedure.

At this stage it would be very relevant to look into the plaint and the scope of the suit filed by the petitioner. The suit has been filed against the State respondents only. It is not a suit where declaration of title of the petitioner is under adjudication. It is a suit for permanent prohibitory injunction against the State respondents filed by the petitioner on a cause of action when the official of the State respondents started measuring the land. It has already been decreed exparte on 22.05.2007 and the defendants of the suit have not proceeded any further thereafter. There is no relief granted by the court against Meera Bashir and others. Any transaction, oral or documentary between the petitioner and Meera Bashir and others is not subject matter of the suit nor any such issue has been decided. The scope of the suit was clearly not of declaration of title nor it was relating to any dispute between the plaintiff petitioner and Meera Bashir and others.

The Urban land ceiling proceedings started against Meera Bashir and others and she maintained her stand that she is not owner of the land. She had sold the land in 1991 after taking permission from the Prescribed Authority under the Act 1976. The purchasers built their houses thereupon. Two writ petitions were filed by Meera Bashir in the High Court relating to ceiling proceedings. She also filed an appeal under Section 33 of the Act 1976. But quite peculiarly in the year 2007 for the first time she has come up with a denial of an oral gift and that too not in a suit but in an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure in Suit No. 157 of 2006 which was decreed exparte only against the State of U.P.. At no forum whatsoever has she at any time shown disagreement or denied the sale deeds. She has taken advantage of the sale deeds to save the land sold which was in her hand as original owner from being declared surplus under the Act 1976 and now after more than sixteen years she has made a uturn and is contradicting all her actions taken in the past.

Apart from the above circumstances the court ought to have seen whether a prima facie interest has been shown by Meera Bashir and others in the land in suit. To recall a decree on mere vague and feeble averment of a non party to the suit who has not even shown a prima facie interest in the property would not be proper. Having divested herself of the property by sale and taken advantage of the sale in ceiling proceedings she cannot now be permitted to reopen all those issues that have attained finality by adjudication up to the High Court between her and the

State respondents. Whether Meera Bashir and others were aggrieved persons ought to have been addressed by the trial court when it was considering the application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure filed by a non party to the decree. Having not done so the order of the trial court is illegal. The revisional court has rightly observed that this issue cannot be considered in a revision under Section 115 of the Code of Civil Procedure. Therefore, it was the trial court that ought to have considered it before allowing the application and setting aside the exparte decree.

That she is not an aggrieved person has been clearly demonstrated by the facts and record of proceedings brought on record of this writ petition. Such records speak for themselves which include judicial decisions. The legal process cannot be permitted to be misused by giving it any other interpretation. Therefore Meera Bashir and others were not aggrieved persons hence they could not maintain an application under Order IX Rule 13 CPC or even under Section 151 CPC.

The decisions cited by learned counsel for the respondents being 1996 AllCJ 1279 (Indian Bank Vs Satyam Fibres (India) Pvt. Ltd.), 1994 AllCJ 1007 (Akhil Kumar and Other Vs Board of Revenue, U.P. Lucknow and Others), 1992 AllCJ 388 (Satyedeo and Others Vs Board of Revenue and Others), AIR 1989 Alld 14 (State of U.P. and another Vs III Additional District Judge, Azamgarh and another) and AIR 1973 SC 76 (Hindustan Aeronautics Vs Ajit Prasad) can be of no help for the reason that they mainly relate to cases where fraud and misrepresentation have been proved. In the present case the past circumstances since 1991 onwards clearly indicate that no fraud was alleged at any stage of the proceedings even though Meera Bashir and others obtained advantage by sale of land and escaped the proceedings under Act 1976 for that reason. Having done so she cannot now restart the entire process by coming up with a plea that no oral gift was made initially. The Repeal Act 1999 did not give any benefit to Meera Bashir but it was her vendees who gained benefit therefrom. Therefore when no fraud or misrepresentation is proved or established in the present case the decisions cited on that point do not at all apply here.

In the State of U.P. and another (supra) this court while considering an order passed by the Trial Court allowing an application under Order IX Rule 13 CPC held that when the Trial Court had found sufficient cause for restoring the suit it was a finding of fact and could not be re-examined by the revisional court

under Section 115 CPC. Clearly this decision related to the jurisdiction of the revisional court. In the present case the impugned revisional order has rejected the revision as not maintainable. As such this decision can be of no help to the respondents.

In Managing Director (MIG) HAL (supra) the Supreme Court has held that interference under Section 115 CPC should only be made if jurisdiction has been exercised illegally or with material irregularity. In the present case the revision has been rejected as not maintainable hence the impugned revisional order has not in any manner interfered in the order of the Trial Court.

In Satyadeo and others (supra) it has been held that a non party to a suit can move an application for setting aside an exparte decree not under Order IX Rule 13 CPC but can maintain an application under Section 151 CPC. In Satyadeo the court found that the suit was filed against one Munni Ahir who was a dead man but this fact was not alleged in the plaint hence the application for setting aside the decree filed by the person in possession of the land was considered and although the application under Order IX Rule 13 CPC was not available to such non party but the court held that the person who had purchased the land from the plaintiff was a necessary party in the suit and omission to implead him led to a presumption of fraud having been committed upon the court. In the present case such is not the circumstance. In fact Meera Bashir had sold away the land to various persons during pendency of Urban Land Ceiling proceedings and she had no interest left in the land therefore she was not at all required to be impleaded in the instant suit. The decision in the case of Satyadeo in fact goes against the respondent inasmuch as there is no fraud or misrepresentation or collusion made out between the petitioner and the State respondent.

In the case of Akhil Kumar (supra) it was held that when an decree was obtained by fraud and is collusive the court cannot be left powerless to do away that injustice and even if the provision of Order IX Rule 13 CPC is not available to a non party of the suit recourse can be made and the provisions of Section 151 CPC in order to avoid multiplicity of proceedings between the parties. In the present case clearly there is no fraud or misrepresentation made by the plaintiff petitioner since Meera Bashir was neither owner nor had any interest in the land in question which she had sold away to various persons upon obtaining permission from the Prescribed Authority under Section 26 of the Act 1976.

The Supreme Court in the case of Indian Bank (supra) found that when a fraud is committed before the court it amounts to abuse of process of court and review application would be maintainable and the court would be bound to decide the question of fraud. In the present case as has already been indicated above the argument that there is fraud and misrepresentation before the Trial Court is neither established nor has been primafacie made out. The respondent Meera Bashir was not owner of the property after the sale deeds were executed by her. Such sale deeds were executed after due permission of the Prescribed Authority under the Act 1976.

In case a question arises whether the beneficiary of the oral gift of Meera Bashir has committed some fraud or misrepresentation before the court the remedy for Meera Bashir was upon a cause of action on such allegation. There is nothing on record to indicate that Meera Bashir has at any stage raised the issue of fraud played upon her by the petitioner in any independent proceeding brought by her. It appears that she was fully satisfied with the sale deeds executed of the land in the years 1991 after due permission under the Act 1976 and no protest or denial to such sale deeds was lodged by her at any forum since then. On the basis of the said sale deeds the vendees came in possession and built their houses and no protest was ever lodged by Meera Bashir. Now after 16 years (2007) to say that the oral gift was never made not in an independent proceeding but in a suit between the petitioner and the State Government by means of an application under Order IX Rule 13 CPC is clearly not a bonafide conduct of Meera Bashir.

It appears from these facts that having taken all advantages of the sale of lands to avoid it being declared surplus under the Act 1976 she has filed the application under Order IX Rule 13 CPC to gain some additional undeserved advantage. Clearly she being not an aggrieved person having no right, title or interest in the land any more could not be permitted to maintain her application for recall of a decree not against her but against the State respondents.

Under such circumstances this court finds it appropriate to set aside the impugned orders and in view of the undisputed facts brought on record of this petition in the form of permissions under Section 26 of the Act 1976, the judgments in proceedings arising out of Act 1976 and the decision of the Division Bench of this court in the writ petitions of the vendees i.e. Amina Khatoon and others no further reason or ground subsists to require the Trial Court to decide on the merits the application under Order IX Rule 13 CPC read with Section 151 CPC

filed by a non party to the suit who is not an aggrieved person nor has even a primafacie right, title or interest in the land in suit.

When Meera Bashir and others had no right, title or interest in the land and were not in possession then they were not aggrieved persons.

For the aforesaid reasons the impugned order dated 21.02.2009 passed in Case No. 147 of 2007 under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure in Suit No. 157 of 2006 alongwith the revisional order dated 02.04.2009 passed in Revision No. 14 of 2009 respectively by the Civil Judge (Jr. Div.) Koil, Aligarh and the District Judge, Aligarh and further proceedings in the application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure in Suit No. 157 of 2006 stands quashed.

The writ petition is allowed.

No order is passed as to costs.

Order Date :- 18.11.2013

Pravin