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3. The Suit was resisted by the appellant. No written statement was filed by the defendants No.2 & 4. The defendant No.5 was subsequently impleaded. The defendant No.3 however filed written statement and contested the Suit.

4. The defendant No.1 pleaded in its written statement that the Suit is not maintainable and that it is further not maintainable for want of notice under Sec. 478 of the B.P.M.C. Act. It was also pleaded that the Suit is time barred and the Suit filed by the Power of Attorney holder is not maintainable because the said power of Attorney is not genuine. Title of the plaintiff in the disputed land was denied. It was pleaded that the wire fencing was raised over the land belonging to the appellant - defendant No.1. It was alleged that the land of Survey No.479 was declared as excess land by the competent Authority under the ULC Act. There were 88 huts on the land of Survey No.479 and the occupants of the huts were in adverse possession of the land against the plaintiff since long. It was also pleaded that the appellant was entitled to get 20 % of the surplus land declared excess by the competent Authority under the ULC Act. 88 hut owners were removed by the defendant No.1 and were allotted alternative site. It was also pleaded that 88 hut owners became owners of the land by adverse possession against the plaintiff and the defendant No.1 also became owner of the disputed land by adverse possession. According to the appellant, against the order of the competent Authority declaring surplus land, appeal was preferred by the plaintiff before the Urban Land Ceiling Tribunal which was dismissed. Thereafter Special Civil Application was preferred by the plaintiff against the order of the Tribunal which was also dismissed. Letter Patent Appeal was also filed by the plaintiff against the order in Special Civil Application which was subsequently unconditionally withdrawn. Thereafter the plaintiff's son Vinod moved an application to the State Government under Section 34 of the ULC Act for review of the decision of the competent Authority. The Government, according to the appellant, wrongly reviewed the case and remanded the same to the competent Authority. The order of the State Government is said to be without jurisdiction null and void. According to the defendant No.1 land was sold to the defendant No.3 after making due publication in news paper, but no objection was raised by the plaintiff. It was also pleaded that the land sold to the defendants No.3 & 4 is part of land of survey No.626. With these pleadings the appellant pleaded that the Suit be dismissed.

16. It is clear from the evidence on record that on 15.9.1984 the Competent Authority under the ULC Act declared 40000 sq. mtrs. of surplus land from the holding of the respondent No.1. The respondent No.1 herein preferred Appeal under Section 33 of the ULC Act against this order of the competent Authority, which was dismissed on 8.8.1988. The respondent No.1 herein thereafter preferred Special Civil Application No.8674 of 1989 which was dismissed on 16.11.1990. Thereafter Letters Patent Appeal No.287 of 1990 was filed by the respondent No.1 herein against the order of the learned Single Judge in the aforesaid Special Civil Application, but it was withdrawn unconditionally on 17.9.1994. Vinod, son of the respondent No.1 approached the State Government to take up the matter in revision under Section 34 of the ULC Act on 29.8.1991. The Government exercised the powers under Section 34 of the ULC Act and remanded the matter to the competent Authority for fresh disposal after affording an opportunity of hearing to Vinod. Thereafter the competent Authority under order dated 8.5.1992 passed consequential order in compliance of the order of the State Government in revision. Shri B. P. Tanna, learned Counsel for the appellant has urged that the order of the State Government under Section 34 is totally without jurisdiction and illegal for various reasons. Firstly, according to him, when the Letters Patent Appeal was withdrawn unconditionally by the father of Vinod, Vinod could not have reagitated the matter inasmuch as no form under Sec. 6 of the ULC Act was filed by him and his name was shown in the form under sec. 6 filed by his father as member of the joint Hindu Family and the father filled in the form as Karta of the joint family. Consequentally son was bound by the declaration of surplus land by the Competent Authority which attained finality not only in Appeal, but also in Special Civil Application and Letters Patent Appeal filed before this Court. His further contention was that the State Government could not have re-written the Judgment of this Court in Special Civil Application passed by the learned Single Judge, more particularly when the Letters Patent Appeal was withdrawn by the father of Vinod unconditionally. He also contended that the principle anologus to resjudicata will apply even to these proceedings and after all some finality to the litigation has to be attached at some stage and not that in intervals one or other coparceners should be permitted to re-agitate the matter again and again. He further contended that since Vinod was claiming under the same title, namely, as coparcener and since form under Sec. 6 was filed by his father as Karta of the family, declaration of surplus land by the competent Authority, which was ultimately up-held, is binding upon Vinod also. The case of Bhagvandas T. Tandel v/s. S. N. Sinha, 1996(1) G.L.H. 433 cited by Shri Tanna, to our mind, is distinguishable on facts. In this case it was held that the doctrine of resjudicata or constructive resjudicata or principles anologus to them simpliciter can not apply in case of order of withdrawal simpliciter. For applicability of principles under Sec. 11 of the Code of Civil Procedure or anologus principle the matter must have been heard and finally decided on merit. Since Letters Patent Appeal was not decided on merit it cannot be said that withdrawal of Letters Patent Appeal amounts to constructive resjudicata. Of course the order of learned Single Judge in Special Civil Application attained finality after withdrawal of Letters Patent Appeal. The case of Natvar Textile v/s. Union of India, reported in 1990(1) G.L.R. 338 is likewise distinguishable. All that is laid down is that principles anologus to Order : 23 Rule : 1 C.P.C. are applicable to proceedings under Article 226/227 of the Constitution of India. It was held that it is true that there would be no bar of resjudicata, but on the ground of public policy the second petition on the same cause of action cannot be permitted to be filed. In the case before us there was no attempt to file second Letters Patent Appeal after withdrawing the first Letters Patent Appeal unconditionally, hence the view taken in this case cannot be applied to the facts of the case before us. The same was the view taken by the Apex Court in Sarbhuja Transport Service v/s. S.T.A. Tribunal, Gwalior, reported in AIR 1987 SC 88 wherein it was laid down that withdrawal of petition under Article 226 of the constitution of India without permission to institute fresh petition in respect of the same cause of action bars subsequent petition. In the case before us no fresh Letters Patent Appeal was filed after withdrawal of the earlier Appeal.

17. Shri Raval contended that Vinod, son of the respondent No.1 was coparcener in the Joint Hindu Family, still he was entitled to receive notice from the Competent Authority and since no notice was issued to him by the Competent Authority he could have approached the State Government to take action under Sec. 34 of the ULC Act. Two cases were cited by him in support of his contention. The case of R. I. Sorathia v/s. ULC Tribunal, 1996 (2) G.L.H. 432 relied upon by Shri Raval is apparently distinguishable on facts. Here it was a case of ancestral land where the original holder died before the ULC Act came into force leaving behind his widow, four sons and a daughter. All the heirs were members of HUF. Widow and four sons filled form No.1 u/s.6 and the Comepetent Authority declared excess vacant land. Daughters did not file form No.1 nor her share was disclosed in the form filed by her brother and mother. No notice under Rule : 5 was issued to her by the Competent Authority nor her case was considered by the Competent Authority. The ULC Tribunal confirmed the order. It was held that the claim of the daughter who is otherwise entitled to share in the ancestral property under the Hindu Succession Act could not be refused without issuing notice under Rule : 5 and affording an opportunity of being heard. The claimant as such cannot be divested of her right under the act. The facts before us are however different. Here the original holder of the land was alive and the form No.1 u/s. 6 was filled in by him showing all the members of the HUF. Consequently notice to the Karta was sufficient notice to all the coparceners and no separate notice was required to be issued to Vinod, son of the original holder.

39. We do not find any merit in the contention of Shri Raval that even though the order of the state Government is alleged to be void and illegal it cannot be ignored unless it was set aside by a competent Court in competent proceedings. Since that order was challenged in the Suit out of which the present Appeal arose the appellant was not obliged to file seperate Suit. Void and null orders can be ignored at any stage even though not questioned and set aside earlier. 40. We, however, find force in the contention of Shri Raval that since no application under Sec. 23 of the ULC Act has been moved and no allotment has been made the State Government can not claim title by vesting under the ULC Act. He was justified in contending that since the proceedings under the ULC Act did not reach upto the stage provided under Sec. 10 of the Act notional vesting could not have conferred title in favour of the State Government.