State Of U.P. And Another vs Kali Charan And 2 Others
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Allahabad High Court

State Of U.P. And Another vs Kali Charan And 2 Others on 4 June, 2025

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:94903
 
Reserved On: 22.05.2025
 
Delivered On: 04.06.2025
 
In Chamber
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6071 of 2019
 
Petitioner :- State Of U.P. And Another
 
Respondent :- Kali Charan And 2 Others
 
Counsel for Petitioner :- Prem Prakash Chaudhary,Suresh Chandra Dwivedi,Tej Bhanu Pandey
 
Counsel for Respondent :- Anil Kumar Rai,Greesh Kumar Malviya,Pramod Kumar Singh,Sitaram Patel,Vishnu Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Heard Sri Tej Bhanu Pandey, learned Standing Counsel along with Dr. Rajeshwar Tripathi, learned Chief Standing Counsel and Sri Sanjai Kumar Singh, learned Additional Chief Standing Counsel for petitioners, Sri Rakesh Pande, learned Senior Counsel along with Sri Greesh Kumar Malviya and Sri Sitaram Patel, learned counsel for respondent no.2 and Sri S.C. Dwivedi along with Sri Pramod Kumar Singh, learned counsel for respondent no.3.

2. This case has a long chequered history. Initially, on 07.02.1882, one Lala Jamuna Prasad and Ganga Sahai S/o Lala Ram Sukh Das who were the owner in possession of plot no.1345 measuring 802 square yard entered into a rent agreement registered on 10.02.1882 with one A.G Bilcock, Civil Surgeon, Bulandshahar for establishing a women hospital at yearly rent of Rs.12/- with conditions of rights to re-inter, in case the property was used for other purpose.

3. On 29.12.1966, a notice was sent by Kali Charan, the successor of Jamuna Prasad and Ganga Sahai to the Zila Parishad, Bulandshahr for vacating the premises as there was default of rent since 31.03.1952 and the premises let out was used for residential purpose such as library as well as veterinary hospital and not for women hospital, for which, it was let out.

4. Kali Charan filed an Original Suit No.115 of 1975 against Zila Parishad, Bulandshahr through its Chairman for recovery of arrears of rent and eviction claiming rent from 01.02.1972 till the filing of suit. The suit was contested by Zila Parishad, Bulandshahar and a written statement was filed on 21.07.1975. In the written statement, it was admitted that the property came under the control of defendant and rent was paid till 31.03.1952. Rest of the contents were denied. The suit was decreed by trial Court on 04.09.1978. Zila Parishad, Bulandshahar filed Civil Appeal No.341 of 1978 challenging the judgment and decree of the trial Court. On 08.02.1980, civil appeal was partly allowed and defendant-appellant was directed to pay the rent while the decree for dispossession was set aside.

5. Aggrieved by the said judgment, plaintiff preferred a Second Appeal No.1619 of 1980 before this Court. During pendency of the second appeal before this Court, plaintiff moved an application for impleading the State of U.P. as defendant in the suit which was allowed on 21.07.1995 and the said order was, however, not carried out by amending the plaint, but State of U.P. was arrayed as defendant in the second appeal.

6. During pendency of the second appeal, Subodh Kumar, legal heirs of Kali Charan executed an agreement to sell on 20.12.1996 for land measuring 500 square yard for Rs.45,000/- which was registered on 22.07.1997 in favour of Smt. Lata Garg w/o Ravindra Nath Garg. Similarly, another agreement to sell was executed in respect of 300 square yard of land on 20.12.1996 by Subodh Kumar in favour of Lata Garg. On 23.06.1999, registered sale deed was executed in favour of Smt. Lata Garg by Subodh Kumar in respect of 500 square yard of land, while on 17.06.2000 registered sale deed was executed for other 300 square yard of land.

7. On 14.05.2003, second appeal filed by plaintiff was allowed and the judgment of the trial Court was confirmed. Against the said judgment, Zila Parishad filed Special Leave Petition No.8677 of 2003 which was converted into Civil Appeal No.8677 of 2003 which was dismissed on 22.09.2010, and the order of the second appeal stood confirmed.

8. Plaintiff- Subodh Kumar filed an Execution Case No.7 of 2003 which was dismissed in default on 05.07.2003. He thereafter filed second Execution Case No.9 of 2003 which was dismissed on 25.05.2005. Thereafter, Power of Attorney holder of the plaintiff, namely, Makkhan Lal Gupta filed third Execution Case No.3 of 2011 which was dismissed on 15.11.2011 on the ground that he was not competent to file the same. Plaintiff filed the fourth Execution Case No.7 of 2011.

9. In the meantime, Smt. Lata Garg filed Execution Case No.8 of 2011 which was finally decided on 13.10.2016 holding that the property purchased by Lata Garg from Subodh Kumar has been identified and she has been given possession, as such, the decree stood satisfied which was confirmed by the judgment of the Apex Court.

10. In the Execution Case No.7 of 2011, the State filed its objection under Section 47 CPC which was registered as Misc. Case No.21 of 2012 which was dismissed on 18.10.2017, against which, a Revision No.123 of 2017 was filed which was dismissed on 30.04.2019, hence the present writ petition.

11. Learned State Counsel submitted that the property in dispute was let out to the State of U.P. by Jamuna Prasad and Ganga Sahai on 07.02.1882 after a rent agreement was executed between the then Civil Surgeon A.G. Bilcock. According to him, the women hospital was constructed, and it functioned till 1934 and thereafter, a new building was constructed and it was transferred there. The structure standing therein has been used for library and as a veterinary hospital. It came under the management of Zila Parishad, but in year 1955, the veterinary hospital came under the control of the State Government, and since then it was the property under control of the State Government and not under Zila Parishad.

12. The suit filed by Kali Charan was a collusive suit as State of U.P., which was a necessary party, was not arrayed as defendant in the suit. The notice issued in the year 1966 was to Zila Parishad which did not have control and possession over the property. The decree of the trial Court was not binding upon the State Government, as it was not a party in the suit and was not aware of the proceedings going on between plaintiff- Kali Charan and Zila Parishad.

13. He next contended that only an impleadment application was moved in the second appeal before this Court which was allowed, but the suit was not amended to the extent that State was impleaded as defendant. Before the Apex Court, it was Zila Parishad which had contested the matter and not the State.

14. He lastly contended that once the property was sold by plaintiff Subodh Kumar son of Kali Charan, the original plaintiff to Smt. Lata Garg during pendency of the appeal and thereafter Lata Garg had filed Execution Case No.8 of 2011 which was finally decided by the judgment dated 13.10.2016, the decree stood satisfied as she was given possession of 800 sqaure yard of land. The total claim of original plaintiff in the plaint was only for 802 square yard of land and now Subodh Kumar, respondent no.2 in the writ petition cannot proceed with his Execution Case No.7 of 2011 claiming the land in question as his rights stood extinguished after the execution of two sale deeds, one for 500 square yard and another for 300 square yard in favour of Smt. Lata Garg.

15. Sri Greesh Kumar Malviya, learned counsel representing respondent no.2 submitted that the decree stood finalised by the judgment of the Apex Court and is binding between the parties interse. According to him, the State was impleaded as defendant at the second appellate stage and thus, the State cannot claim that decree is not binding upon them, as they failed to file their reply or contest the second appeal. Further, no Special Leave Petition was preferred by the State before the Supreme Court.

16. He then contended that the land in question was leased out in 1882 for construction of women hospital. The purpose was changed and property in question was used for veterinary hospital, and a library was being run which has led to the filing of suit for arrears of rent and ejectment. He also contended that the property no.1345 which has been renumbered consists of a huge plot and the land transferred to Smt. Lata Garg is different from what is being claimed by the plaintiff. According to him, the decree still has not been satisfied and both the Courts below had rightly repelled the objections under Section 47 CPC filed by the State.

17. Sri Suresh Chandra Dwivedi, learned counsel appearing for Zila Parishad/Zila Panchayat, Bulandshahar submitted that after 1955, the property in dispute has come within the management and control of the State as veterinary hospital is a subject matter of State. It was prior to 1955 that Zila Panchayat had control over the property. He fairly conceded that written statement was filed by the Zila Panchayat, the said fact has not been stated and a specific plea should have been taken that the State was a necessary party which should have been impleaded as defendant as the rent claimed was from 01.02.1972 when Zila Parishad had no right over the property.

18. I have heard respective counsel for the parties and perused the material on record.

19. The short point for consideration is as to whether the decree of the trial Court of year 1978 is binding upon the State Government which was not a party in the suit instituted by the plaintiff Kali Charan or not; and also whether Execution Case No.7 of 2011 could proceed in the light of the fact that Execution Case No.8 of 2011 filed by Smt. Lata Garg in respect of the execution of the decree dated 04.09.1978 was decided on 13.10.2016 holding that the decree stood satisfied which has been upheld by the order of the Hon'ble Apex Court in Civil Appeal No.8677 of 2003, and the possession having been handed over to her in respect of 800 square yard of land.

20. It is admitted case to both the parties that on 07.02.1882, a rent agreement was executed between Jamuna Prasad, Ganga Sahai and one A.G. Bilcock, Civil Surgeon which was registered on 10.02.1882 in respect of 802 square yard of land situated at plot no.1345-M situated at Bulandshahar at yearly rent of Rs.12/-. Pursunat to the agreement, a women hospital was constructed which functioned till 1934. Thereafter, it was shifted to another place and a library and veterinary hospital started running from the land leased out.

21. The lessor never objected to the action of State. From 1934 till 1955, the management and control of veterinary hospital went into the hands of Zila Parishad. However, by the notification of the State Government issued on 24.12.1955, the veterinary hospitals under District Boards at Unnao, Deoria, Bulandshahar and Etah came under the control of the State Government.

22. In the year 1975, Kali Charan filed Original Suit No.115 of 1975 against Zila Parishad, Bulandshahar claiming relief for arrears of rent from 01.02.1972 till filing of the suit and also for decree of eviction. In the said suit, in para 7 it was averred that on 29.12.1966 and 31.12.1966, notice was issued to defendant- Zila Parishad for the payment of rent and eviction.

23. It is clear from the plaint itself that State which was a necessary party was not arrayed as defendant in the suit by Kali Charan despite specific averment made in para 2 that rent agreement was executed on 07.02.1882 between the lessor and A.G. Bilcock, Civil Surgeon who was a State Government employee. The decree dated 04.09.1978 was not binding upon the State, as it was never a party to the suit. It was only during the pendency of second appeal before this Court that an impleadment application was moved by the plaintiff/respondent no.2 for impleading the State as a party, which was allowed on 21.07.1995. The plaint was never amended and State was not made a party, though the decree of the trial Court was confirmed by Hon'ble Apex Court vide judgment dated 22.09.2010. It was never brought to the notice of the trial Court, or Hon'ble Apex Court that State was a necessary party and rent deed having been executed in 1882 between the lessor and the State and thereafter, a notification of 1955 bringing the veterinary hospital within the canopy of the State, the said decree could not bind the State.

24. In the execution proceedings initiated by the plaintiff/respondent no.2 being Execution Case No.7 of 2011, State specifically pleaded that it should have been made defendant in the suit being a necessary party who was deliberately omitted by the plaintiff despite there being pleading to the effect that agreement was between the lessor and the State.

25. The Executing Court did not return any finding on this issue, rather it was swayed by the fact that impleadment application was allowed during the second appellate stage, and the State having not contested the matter was bound by the decree of the trial Court having been confirmed by the Apex Court. Executing Court failed to consider that the plaint was never amended after the impleadment application was allowed, and no opportunity was granted to the State to contest the allegation made in the plaint. The second appellate Court is not a Court of fact, and second appeal is maintainable only on substantial questions of law.

26. Moreover, the Executing Court failed to consider that decree of 1978 cannot be executed twice. The Execution Case No.8 of 2011 was filed by Smt. Lata Garg, the purchaser of the alleged property in question from the plaintiff decree holder, Subodh Kumar through two registered sale deeds of the year 1999 and 2000. In the agreement to sell and the sale deed executed in favour of Smt. Lata Garg, plaintiff Subodh Kumar has clearly given the description of the pendency of Second Appeal No.1619 of 1980, meaning thereby that Lata Garg had purchased the property in litigation.

27. Paragraph- 1 of the plaint reveals the area of property in dispute which is 802 square yard, while plaintiff- Subodh Kumar had transferred 800 square yard through two sale deeds to Lata Garg. In the Execution Case No.8 of 2011, Lata Garg had sought execution of the decree of the trial Court of 1978. Once, the plaintiff decree holder transferred the property to Lata Garg and sale was completed in terms of Section 54 of the Transfer of Property of Act, he had no right to contest over the matter and claim property in execution proceedings.

28. As far as Lata Garg is concerned, doctrine of lis pendence would apply as she has purchased the property during pendency of the litigation, and after the decree of trial Court was confirmed by the judgment of the Apex Court, she had rightly moved the execution proceedings and got the decree executed which was decided by judgment dated 13.10.2016.

29. Once, the decree of 1978 stood executed on 13.10.2016 and the Executing Court held that the possession has been handed over to Lata Garg for 800 square yard pursuant to the decree having been confirmed in Civil Appeal No.8677 of 2003, the objection filed by the State under Section 47 CPC should have been considered by the Executing Court while deciding Misc. Case No.21 of 2012, and also the revisional Court while deciding Revision No.123 of 2017.

30. Both the Courts below failed to consider that decree of 1978 cannot be executed twice. The Court should have taken into consideration the two execution case, one filed by Subodh Kumar as Execution Case No.7 of 2011, and another Execution Case No.8 of 2011 filed by purchaser, Lata Garg.

31. Once, the execution proceedings of Lata Garg attained finality and it was held that decree stood satisfied, there stood no occasion for rejecting the objections of the State without due consideration to the proceedings of Execution Case No.8 of 2011.

32. Considering the facts and circumstances of the case, the short point framed above stands answered and orders passed by both the Courts below dated 30.04.2019 and 18.10.2017 are hereby set aside.

33. The matter is remitted back to the Executing Court to decide the objections filed under Section 47 CPC by the State, keeping in mind the observations made above, and also record finding as to the sale deed executed by plaintiff/decree holder, Subodh Kumar in favour of Lata Garg in the year 1999 and 2000 and thereafter, the decree of 1978 having stood satisfied in the proceedings of Execution Case No.8 of 2011 instituted by Lata Garg.

34. Writ petition stands partly allowed.

35. The Executing Court shall decide the objection filed by the State under Section 47 CPC afresh within a period of three months from the date of production of certified copy of this order.

Order Date :- 4.6.2025

SK Goswami