Allahabad High Court
Bhrigunath Prasad vs Chief Judicial Magistrate Ballia And 4 ... on 14 March, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:45640 Reserved Court No. - 70 Case :- WRIT - C No. - 26278 of 2018 Petitioner :- Bhrigunath Prasad Respondent :- Chief Judicial Magistrate Ballia And 4 Others Counsel for Petitioner :- Mr. Abhishek Kumar, Mr. Ranjay Kumar Counsel for Respondent :- Mr. Arvind Srivastava, Mr. Hari Om Gupta With Case :- WRIT - C No. - 2783 of 2007 Petitioner :- Bhrigunath Prasad Respondent :- State of U.P. and Others Counsel for Petitioner :- Mr. Abhishek Kumar, Mr. Ranjay Kumar Counsel for Respondent :- C.S.C., Mr. Arvind Srivastava, Mr. Hari Om Gupta Hon'ble Piyush Agrawal,J.
1. Heard Mr. Abhishek Kumar learned counsel for the petitioner, learned Standing Counsel for State and Mr. Arvind Srivastava, learned counsel for contesting respondents.
2. The issue involved in both the aforesaid writ petitions is arising out of the same property and is common as such both the writ petitions are being decided by common judgement/order treating WRIT - C No. - 26278 of 2018 as leading case.
3. WRIT - C No. - 26278 of 2018 has been filed for the following relief:-
"To issue writ, order or direction in the nature of certiorari quashing the order dated 6.7.2018 passed by respondent no. 1 in Municipality Appeal No. 3 of 2006 (Sudarshan and another Vs. Administrator Nagar Palika Parishad, Ballia and others)."
4. Further WRIT - C No. - 2783 of 2007 has been filed for the following relief:-
"To issue writ, order or direction in the nature of certiorari quashing the order dated 21.12.2006 passed by respondent no. 2 (Annexure No. 4 to W.P.)"
5. Brief facts of the case are that property in question is situated in plot no. 1 and 12 of block no. 3-4 (A) Mohalla Bishunipur City and Distt. Ballia, which is under the limits of Nagar Palika Parishad, Ballia. Earlier mother of the petitioner namely Bhagmaniya was married to one Bishwanath Ram however Bishwanath Ram had died issueless but during his lifetime executed a will of the property in question in favour of his wife Bhagmaniya. After death of Bishwanath Ram, Bhagmaniya re-married with Radha Kishun and out of their wedlock, the petitioner was born. Bhagmaniya was the real sister of one Budhiya and Nandlal was her husband. Bhagmaniya has executed a gift deed dated 25.1.1969 in favour of Nandlal. Bhagmaniya died in the year 1970 and after her death, the property in question was succeeded by the petitioner being her legal heir / representative under the capacity of owner in possession.
6. After death of Bhagmaniya, Nandlal, father of contesting respondents in the year 1982 has claimed his right over the property in question on the basis of alleged gift deed dated 25.1.1969 executed by Bhagmaniya in his favour. Thereafter Dhanpatiya wife of another uncle of the petitioner namely Gajar filed Suit no. 88 of 1982 for cancellation of gift deed dated 25.1.1969 claiming herself the second wife of Radha Kisun and in the said suit, the petitioner was not party. Thereafter on 16.11.1984, the said suit was decreed in favour of Dhanpatiya and gift deed dated 25.1.1969 was declared null and void. Against the said order, an Appeal No. 770 of 1984 was filed which was later on numbered as Appeal No. 18 of 1992 in which an interim order was passed on 5.12.1984 however on 20.2.1985, the interim order was vacated.
7. After vacation of interim order, Dhanpatiya filed an execution case registered as Case No. 10 of 1985 for delivery of possession of the property in question but the same was obstructed by the petitioner upon which police aid was sought by Amin which was allowed by the Court on 17.4.1985. Thereafter a revision was preferred by the petitioner against the order dated 17.4.1985 before this Court which was disposed of vide order dated 3.5.1985 granting liberty to Dhanpatiya to move application under order 21 Rule 97 C.P.C. Thereafter the said application was filed by Dhanpatiya, which was numbered as Case No. 60 of 1985 in which the petitioner as well as the contesting respondents were opposite party and the said application was dismissed vide order dated 28.5.1988 holding that the petitioner is the owner in possession of the property in question. On the strength of the said order, the petitioner got his name recorded in the property register vide order dated 14.9.1992 passed by the Municipal Board.
8. In the meantime, against the order dated 28.5.1988 passed in the proceeding / application under order 21 Rule 97, a first appeal registered as First Appeal No. 1 of 2004 was filed and same was dismissed by order dated 08.12.2005. Subsequently another First Appeal No. 18 of 1992 was allowed on 21.4.2003 and suit no. 88 of 1982 filed by Dhanpatiya was dismissed and it was held that gift deed dated 25.1.1969 was executed by Bhagmaniya. The petitioner was neither party in the said suit nor in the appeal. Thereafter, against the said order, Second Appeal No. 913 of 2003 was filed before this Court which was dismissed as withdrawn vide order dated 27.3.2015.
9. In the meantime, on 27.1.2006, the contesting respondent moved an application for mutating his name over the property in question on the basis of decree of first appellate court's order dated 21.4.2003, which was affirmed the validity of gift deed made in favour of Nandlal. The said application was rejected vide order dated 17.7.2006 against which Appeal No. 3 of 2006 was preferred before the Chief Judicial Magistrate, Ballia in which an objection in respect of maintainability of the appeal was filed by the petitioner, which was rejected vide order dated 21.12.2006, thereafter, against the said order Writ Petition No. 2783 of 2007 was preferred before this Court which was entertained and an interim order dated 18.1.2007 was granted staying the proceeding of Appeal No. 3 of 2006. The aforesaid writ petition was dismissed in default vide order dated 12.1.2009 however, the said order has been recalled vide order dated 1.5.2009.
10. In the meantime, the contesting respondent moved an application dated 18.4.2018 to adjudicate appeal no. 3 of 2006 and further to proceed with the case. The said application was objected by the petitioner and he filed his objection on 19.5.2018 stating therein that Writ Petition no. 2783 of 2007 was restored to its original number vide order dated 1.5.2009 and all the consequential order deemed to be automatically restored as such the court is not required to proceed in the appeal. However, the objection of the petitioner has not been considered by the court below and ultimately by the impugned order Appeal No. 3 of 2006 has been allowed vide order dated 6.7.2018 and order dated 17.7.2006 passed by the Nagar Palika Parishad, Ballia has been set aside and it was directed to record the name of the respondent/ applicant therein in lieu of the petitioner in the property register. Hence the present petition.
11. Learned counsel for the petitioner submitted that the petitioner is the owner in possession of the property in question being the heir and legal representative of Bhagmaniya and Radha Kishun. He submitted that the petitioner was not party in the suit filed by Dhanpatiya for cancellation of gift deed in which the gift deed made in favour of contesting respondent was upheld, hence the decree is not binding upon the petitioner. He submitted that by the order dated 28.5.1988, in the proceeding under Order 21 Rule 97 C P C, the petitioner was declared the owner in possession of the property in question and on the basis of that order, the name of the petitioner was recorded in the property register of Municipality.
12. He submitted that once in the proceeding under Order 21, Rule 97 CPC, an order is passed after hearing all the stake holders then any other suit is prohibited. In support of his submission he relied upon the judgement of Supreme Court in Brahmdev Chaudhary Vs. Rishikesh Prasad Jaiswal and others, AIR 1997 SC page 856 in which it has been held that adjudication under order 21 rule 97 is binding and separate suit is barred.
13. He further submitted that the court below has not appreciated the fact that the petitioner was born out of the wedlock of Bhagmaniya and Radha Kishun and in order to grab the property in question theory of gift deed was concocted by Nandlal but he could not succeeded as the suit was dismissed. The finding recorded by the court below that on the strength of gift deed dated 25.1.1969, Nandlal appears to be owner, is perverse and same has no concern with the petitioner as the petitioner was neither party in the suit filed for cancellation of gift deed nor in the appeal.
14. He submitted that an appeal entertained by Chief Judicial Magistrate is without jurisdiction. The Government Order dated 7.11.1974 is redundant as the Act has been amended in 1994 and proviso clause of Section 160 of UP Municipality Act has been deleted and in view of that deletion the appeal was not maintainable before the Chief Judicial Magistrate.
15. He submitted that the court below has exceeded its jurisdiction while passing the impugned order as Writ C No. 2783 of 2007 is pending consideration before this Court in which the interim order was granted on 18.1.2007 restraining the respondent to proceed further in Appeal No. 3 of 2006.
16. In support of his submissions, he relied upon the judgement of this Court in Writ C No. 22759 of 2009 (Mohd. Idreesh Vs. State of UP and others) decided on 26.7.2011; Hari Bhagwan Agrawal Vs. Nagar Palika Parishad, Allahabad, 2011 (5) ADJ 660, Writ Petition No. 42441 of 2010 (Smt. Darshan Devi Vs. District Magistrate Basti and others) decided on 30.11.2010; Writ C No. 67593 of 2014 (Smt. Parvati Devi Vs. Additional District Judge and others) decided on 3.2.2015 and Matter Under Article 227 No. 9748 of 2019 (Sajal Kumar Vs. C.J.M. Ballia and others) decided on 8.5.2020 in which it has been held that C.J.M. has no jurisdiction to hear and decide the appeal lies under Section 160 of UP Municipality Act. He further relied upon the judgement of Supreme Court in the case of Dwarka Prasad Agrawal Vs. B.D. Agrawal and others, 2003 (6) SCC 230 in which it has been held that order without jurisdiction is nullity. He further relied upon the judgement of this Court in Lal Bachan Vs. Board of Revenue, 2002 (93) RD 6 in which it has been held that writ lies in mutation proceeding if the order is without jurisdiction. He further relied upon the judgement of Culcutta High Court in Tarak Nath Gangopadhyay Vs. Kali Shankar Bandhopadhyay, 1960 AIR (Calcutta) 440 as well as Bombay High Court in Mathurabadi wife of Nilkanth Deshpande and another Vs. Ramkrishna Bhaskar Barve and others, 1961 AIR (Bombay) 97 in which it has been held that finding against the defendant respondent is not res judicate if the suit is dismissed. He prays for allowing the present writ petition.
17. Per contra, learned counsel for the contesting respondent has submitted that name of the petitioner was mutated in the records fraudulently and same is void ab initio as the interim order was operating in First Appeal No. 770 of 1984 up to 21.4.2003. He submitted that since the execution proceeding was decreed in favour of petitioner and dismissed against Dhanpatiya and same was merged in First Appeal No. 18 of 1992 as such the execution proceeding was declared null and void and decree passed by the first appellate court in appeal no. 18 of 1992 was binding upon the petitioner even he was not party in said suit.
18. He further submitted that under Order 21 Rule 97 CPC no separate suit is required to be filed for adjudication of such question and the order passed by the executive Court apart from adjudication shall be treated as a decree meaning thereby the order passed by executive court upon the adjudication shall be treated as a decree.
19. He further submitted that mutation proceeding is a summary proceeding and is not create substantive right of the parties. In the present case, title of the property in question has been decided in favour of respondent nos. 3 and 4, thus the writ petition is not maintainable. He relied upon the judgement of this Court in Karan Singh Vs. State of UP, 2021 (153) RD 379 in which it has been held that mutation proceeding is summary in nature and no right or title is created.
20. He further submitted that petitioner has no locus standi to file the instant petition as no title or ownership has been infringed by the contesting respondents.
21. He further submitted that interim order passed in Writ C No. 2783 of 2007 was vacated on 12.1.2009 and as no interim order was operating, the contesting respondents filed an application dated 16.4.2018 and same was allowed by the C.J.M. Ballia, which is just and proper in the eyes of law. He submitted that the writ petition was dismissed in default vide order dated 12.1.2009 and restoration application will not revive the interim order unless it has specifically been stated by this Court in the order passed in the restoration application. He relied upon the judgement of this Court in Jitendra Singh @ Guddan Vs. State of U.P. 2010 (1) ADJ 124 (DB).
22. The petitioner has not challenged the Government Order dated 7.11.1974 in the writ petition by which power was given to the Chief Judicial Magistrate as an appellate authority under Section 160 (1) of UP Municipality Act, 1916 as such without declaring the ultra vires of the said Government Order, the same is still in existence. He prays for dismissing of the present writ petition.
23. After hearing learned counsel for the parties, the Court has perused the records.
24. It is admitted between the parties that gift deed dated 25.1.1969 was came to light for the first time in the year 1982 i.e. after 12 years of the death of donee namely Bhagmaniya in the year 1970. It is also not in dispute that Dhanpatiya has challenged the gift deed dated 25.1.1969 by instituting the suit for cancellation i.e. Suit No. 88 of 1982 in which the petitioner was not party. By the order dated 16.11.1984, the said suit was decreed holding that the gift deed dated 25.1.1969 was null and void. It is further admitted that after vacation of stay order vide order dated 20.2.1985 in Appeal No. 18 of 1992 (old No. Appeal No. 770 of 1984) Dhanpatiya has filed Execution Case No. 10 of 1985 for delivery of possession over the property in question to which the petitioner has filed objection for the first time. Police aid has been sought by Amin which was allowed by Court on 17.4.1985. In pursuance of the order dated 3.5.1985 passed by this Court, Dhanpatiya moved an application under Order 21, Rule 97 registered as Case No. 60 of 1985. The said application was seriously contested by the petitioner as well as the contesting respondents and by the order dated 28.5.1988, it was held that the petitioner was the owner in possession of the property in question. It is also not in dispute that on the basis of said order, the petitioner has got his name recorded in the property register vide order dated 14.9.1992 passed by the Municipal Board.
25. It is pertinent to mention here that for the first time the contesting respondent as well as the petitioner were heard together and thereafter the order dated 28.5.1988 has been passed by the civil court in the proceeding under Order 21, Rule 97 CPC. The record reveals that order dated 28.5.1988 has become final and same has not been set aside by competent court. Thus the order dated 28.5.1988 was passed after hearing all the stake holders, therefore, it is binding upon the parties.
26. Order 21, Rule 97 CPC empowers any person in the possession of immovable property to resist or obstruct when execution of decree is made. The word "any person" used under Order 21 Rule 97 CPC is wide enough to include all persons resisting delivery of possession claiming their right in the property even those not bound by the decree or person claiming right on their own.
27. The purpose of Order 21, Rule 97 CPC enable the third parties to seek adjudication of their right in execution proceeding with a view to curtail the prolonged litigation and rest delay caused in execution of decree. In order words, the obstructor can seek adjudication of his right under Order 21, Rule 97 CPC, if a person is executing decree against him.
28. It further provides that no separate suit is required to be filed for claiming right over the property, once the order under Order 21, Rule 97 CPC is passed, the same is binding upon both parties concerned.
29. It is not in dispute that in the application under Order 21, Rule 97 CPC, the order was passed in favour of the petitioner on 28.5.1988 and in pursuance thereof, name of the petitioner was recorded in the municipal records vide order dated 14.9.1992. Once the name of the petitioner was recorded in municipal records the impugned order dated 6.7.2018 should not have been passed.
30. The records reveal that right of the petitioner in the proceeding arising out of Order 21, Rule 97 C.P.C. has been decided, as for the first time, the petitioner as well as contesting respondents were heard and matter was decided in favour of the petitioner. Once the petitioner has been held the true owner of the property in question, the impugned order dated 6.7.2018 cannot be sustained in the eyes of law. Once this Court find that impugned order cannot sustain in the eyes of law, all other issues raised and pressed need not to be gone into.
31. The order dated 21.4.2003 passed in First Appeal No. 18 of 1992 is of no aid to the contesting respondents as stated herein above, as the petitioner was neither made party in the proceedings nor put to any notice of the same nor any opportunity was provided to him to file objection, if any.
32. In view of peculiar facts and circumstances of the case in hand as stated above, the Writ Petition No. 26278 of 2018 is allowed. The impugned order dated 6.7.2018 is hereby set aside.
33. The Writ Petition No. 2783 of 2007 is disposed off accordingly.
Order Date :- 14.3.2024
Rahul Dwivedi/-