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2015 DIGILAW 133 (ALL)

Hazi Mohd. Ishtiyaq v. State of U. P.

2015-01-19

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri SK Yadav, learned Counsel for the petitioners, learned Standing Counsel for the State-respondents, as also Sri Indrajeet Singh Yadav, who has accepted notice on behalf of respondent No. 5, Nagar Nigam, Moradabad (for short, the Nagar Nigam). With the consent of the parties, this writ petition is being disposed of at the admission stage itself without calling for any counter affidavit. 2. The writ petition arises out of a suit under section 202 of the UP ZA and LR Act (for short the Act), read with Rule 176A(2) of the Rules framed thereunder, and is directed against the orders dated 19.7.2013 passed by the SDM, and the order dated 26.8.2014, passed by the Addl. Commissioner, affirming the order of the SDM. 3. The facts of the case, briefly stated, are that Abdul Razzaq, father of the petitioners, was granted an Asami patta, and his name was, therefore, recorded under class 3. It appears that the eviction proceedings were initiated against him by the said Abdul Razzaq by means of a suit under section202 of the Act. This suit, being Suit No. 9/76-77, was decreed on 15.4.1977. Abdul Razaaq preferred an appeal before the Additional Commissioner against the judgement and decree, which was allowed and the judgement and decree were set aside. 4. It is the case of the petitioners that the conditions specified in the appellate order were complied with and all the deposits that were required to be made, were duly made. It has also come on record that Abdul Razzaq died on 24.7.1980. It is further alleged that applications were filed by the petitioners, who are the sons of Abdul Razzaq, for recording their names over the land in dispute, but no orders have been passed in this regard. 5. In the meantime, the petitioners continued to deposit the land revenue and the relevant receipts in this regard have been filed on record. 6. Subsequently, on a report made on 21.12.2004, a suit under section 202 of the Act, being Suit No. 10 of 2005: Nagar Nigam v. Mohd. Ishtiaq and another, was instituted by respondent No. 5, the Nagar Nigam. This suit is still pending consideration. 7. 6. Subsequently, on a report made on 21.12.2004, a suit under section 202 of the Act, being Suit No. 10 of 2005: Nagar Nigam v. Mohd. Ishtiaq and another, was instituted by respondent No. 5, the Nagar Nigam. This suit is still pending consideration. 7. During the pendency of Suit No. 10 of 2005, wherein the petitioners are arrayed as the defendants, another report was made by the Tehsildar, Moradabad, in pursuance whereof Suit No. 167 of 2013, under section 202 of the Act, read with Rule 176-A(2) of the Rules, was instituted, arraying Abdul Razzaq as defendant therein. This suit was decreed on 19.7.2013 and the name of Abdul Razzaq was ordered to be expunged and the property in question was directed to be recorded as a State property. 8. Aggrieved by this order, the petitioners preferred a revision befog the Addl. Commissioner, primarily on the ground that the judgement and decree has been passed against a dead person. The petitioners, who are the heirs of the defendant in the said suit, were never provided any opportunity of hearing and, lastly, that Rule 176-A(2) of the Rules had no application in the instant case. 9. The Addl. Commissioner by the impugned order dated 26.8.2014 has dismissed the revision, hence this writ petition. 10. On the strength of the facts noticed above, it has been contended by the learned Counsel for the petitioners that the suit had been instituted against a dead person and, therefore, the judgment and decree passed therein was a nullity and the Addl. Commissioner has committed a manifest error in affirming this judgment without considering the pleas raised by the petitioners that the defendant in the said suit had already expired in 1980, almost 30 years prior to its institution. 11. The second submission made by the learned Counsel for the petitioners is that by the impugned orders the property has been directed to be recorded in the name of the State despite the fact that a suit, under section 202 of the Act filed by respondent No. 5, the Nagar Nigam, against the petitioners, has been pending consideration since the year 2005 and, therefore, also the impugned orders are liable to be set aside. 12. Learned Standing Counsel, in rebuttal, has supported the impugned orders. 12. Learned Standing Counsel, in rebuttal, has supported the impugned orders. He has stated that Abdul Razzaq had been granted an Asami patta, the validity whereof is not more than 5 years. The term of this lease has long since expired and, therefore, the impugned orders are fully justified and call for no interference. 13. Upon hearing the learned Counsel for the parties and upon perusal of record, it clearly emerges that Abdul Razzaq was the Asami of the land in question. A suit under section 202 for his eviction had been instituted and the same had been decided in his favour, prior to his death. However, another suit for eviction of his sons, who succeeded Abdul Razzaq on his death, has been instituted in the year 2005 and the same is pending consideration even as on date. It is further clear that during the pendency of this suit, and with an attempt to by-pass the same, another suit was instituted against a dead person and the same has been decreed ex-parte. The consequential revision filed by the petitioners, alleging that the judgment and decree was ex parte and, in any case, a nullity, having been passed against a dead person, has been dismissed without considering these specific pleas. 14. Under the circumstances, it is established on record that the order of the SDM dated 19.7.2013 is a nullity as it was passed against a dead person. The Addl. Commissioner while dismissing the revision has not adverted to this aspect and, therefore, his order also cannot be sustained. 15. Since respondent No. 5, the Nagar Nigam, has already instituted a suit for eviction under section 202 of the Act, the dispute between the parties shall abide by the final decision in such proceedings. I, therefore, set aside the impugned order dated 26.8.2014 and 19.7.2013 passed by the respondent 3 and 4, respectively, and allow the writ petition.