Allahabad High Court
Ishtiaq Hussain And Another vs State Of U.P. And 4 Others on 14 December, 2022
Bench: Siddhartha Varma, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- WRIT - C No. - 33252 of 2022
Petitioner :- Ishtiaq Hussain And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Mansoor Ahmad,Sr. Advocate
Counsel for Respondent :- C.S.C.,Pawan Kumar Singh
Hon'ble Siddhartha Varma,J.
Hon'ble Ajit Singh,J.
Heard Sri H.R. Mishra, learned Senior Advocate assisted by Sri Mansoor Ahmad, learned counsel for the petitioners; Sri A.P. Paul, learned counsel appearing for the respondent-Prayagraj Development Authority and learned Standing Counsel.
The original owners of the property in question were Gangadeen and Gherau. After the death of Gangadeen, the property was succeeded by Kallu and Lallu. They sold the property in question to one Ashish Jaiswal on 27.2.1992 and thereafter Ashish Jaiswal sold the property to one Brijesh Pandey on 17.1.2005. Brijesh Pandey sold the property in question to the petitioners on 27.7.2011.
The petitioners when were being disturbed by the Development Authority, they filed a writ petition being Writ-C No.2528 of 2014 (Ishtiaq Hussain & Anr. vs. State of U.P. & Ors.). This writ petition came to be dismissed on 16.11.2016 with a clear finding that the transfer effected in 1992 by Kallu and Lallu was a void transaction. Against the judgment and order of the High Court, the petitioners approached the Supreme Court by means of Special Leave Petition being SLP No.19612 of 2019. This SLP came to be dismissed on 7.9.2022.
Learned counsel for the petitioners has submitted that when on 12.9.2016, the ceiling authorities had found that the proceedings had proceeded against a dead person and had recalled the orders by which all the land was declared to be surplus then, learned counsel for the petitioners states, the instant writ petition was filed taking recourse to the law as has been laid down by the Supreme Court in Tanu Ram Bora vs. Promod Ch. Das (Dead) Through Legal Representatives & Ors. reported in (2019) 4 SCC 173. Learned counsel for the petitioners submits that even if Lallu and Kallu did not have the title on the date when the sale had taken place, the buyer got the title in view of the provisions of section 43 of the Transfer of Property Act, 1882 on 12.9.2016 when the ceiling authorities had reconsidered the case of Kallu and Lallu and had found that the land could not be declared surplus under the provisions of Urban Land (Ceiling and Regulations) Act, 1976.
Sri A.P. Paul, learned counsel appearing for the Prayagraj Development Authority has raised a preliminary objection and has stated that when the ceiling authorities had passed the order of reversion of the land of the owners on 12.9.2016 then this fact ought to have been made a ground of defence in the writ petition which the petitioners had filed earlier and he relied upon the provisions of Explanation-IV of section 11 of the Code of Civil Procedure. Learned counsel for the Prayagraj Development Authority states that even if the petitioners could not raise this issue before the High Court, they should have raised the same before the Supreme Court when the SLP was argued and was dismissed on 7.9.2022.
Having heard learned counsel for the petitioners, learned counsel appearing for the Prayagraj Development Authority and learned Standing Counsel, the Court is definitely of the view that the plea which is now being raised before this Court is definitely barred under the Explanation-IV to section 11 of the CPC. The plea is, therefore, barred by the principles of res-judicata.
No interference is, therefore, warranted in this writ petition.
The writ petition, accordingly, stands dismissed.
Order Date :- 14.12.2022
GS
(Ajit Singh, J.) (Siddhartha Varma, J.)
