RAMESH CHANDRA MISHRA AND OTHERS Vs. PRESCRIBED AUTHORITY/CIVIL JUDGE (S.D.), COURT NO. 10, RAIBARELI AND ANOTHER.

JUDGEMENT

(1.) The present petition has been filed for quashing of the proceedings of P.A. Execution Case No. 21 of 2005 including the judgment dated 24.8.2009 passed by the opposite party No. 1 and further a writ of mandamus to the opposite party No. 1 not to proceed with P.A. Execution Case No. 21 of 2005 and not to evict the petitioners from the premises in dispute.

(2.) The facts in brief, which give rise to the present petition are that a shop situate at Station Road, Raibareli on nazul plots No. 1488, 1491 and 1492 of which Ram Swaroop, grandfather of the petitioners was tenant and after his death, the tenancy was inherited by their father late Krishna Nand Mishra. Plot Nos. 1489, 1490, 1493, 1494 and 1495 are nazul plots and lease in respect of all these plots were given to Gauri Shanker and Laxmi Narain with effect from 1.9.1919 to 31.3.1949. Subsequently, Laxmi Narain sold his lease hold rights in the aforesaid plot Nos. 1488, 1491 and 1492 under a registered sale deed with the permission of the Collector in favour of Mangali Prasad, which was granted for a period of 30 years with effect from 1.4.1949 to 31.3.1979, but Mangali Prasad did not apply for renewal of lease after expiry of the term. In the meantime, Mangali Prasad on 18.4.1956 with the permission of the Collector, Raibareli executed a registered gift deed in favour of Smt. Ram Janki (daughter-in-law) and Ramesh Kumar (minor grandson). Later on Smt. Kailasha, widow of Mangali Prasad got a registered gift deed executed on 5.6.1956 from Smt. Ram Janki and Ramesh Kumar and after obtaining the aforesaid gift deed, Smt. Kailasha sold three shops, including the shop in dispute under a registered sale deed dated 1.2.1969 to Smt. Om Shakti, opposite party No. 2. Opposite party No. 2 after becoming the owner of the structure standing on the plots in question i.e. double story and single story, including the shop in dispute, made an application on 3.7.1982 under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting , Rent & Eviction) Act, 1972 (for short the 'Act') against the father of the petitioners for release on the ground of bona fide need for establishing her son, Rajendra Kumar in business. The application was contested by late Krishna Nand Mishra, father of the petitioners, denying the relationship of landlord and tenant on the ground that after purchase of the shop by opposite party No. 2 when he came to know about the transfer, he remitted the rent to her through money order, which was refused, whereupon he made an application under Section 7-C (2) of U.P. Act No. III of 1947, in which opposite party No. 2 filed her objections denying Krishna Nand Mishra to be her tenant. He also denied the bona fide need of opposite party No. 2. The Prescribed Authority after considering the entire facts on record allowed the application holding therein that the need of opposite party No. 2 was bona fide and on a comparison of the respective hardship of the parties, it was held that in case the application is rejected, the opposite party No. 2 would suffer great hardship than that of the father of the petitioners vide order dated 17.9.1983. Aggrieved with the aforesaid order, father of the petitioners filed an appeal before the District Judge, Raibareli, which was dismissed by the Special/Additional District Judge, Raibareli vide judgment dated 9.7.1985. The father of the petitioners feeling aggrieved with the aforesaid order, filed Writ Petition No. 3787 (R.C.) of 1985 before this Court and during the pendency of the writ petition, Krishna Nand Mishra, father of the petitioners, died and the petitioners were substituted as his heirs and legal representatives. The aforesaid writ petition was dismissed by this Court vide judgment and order dated 24.10.2005. Thereafter, petitioners filed Review Petition No. 351 (R.C.) of 2005 before this Court, which too was dismissed vide order dated 26.3.2007. This Court while dismissing the review petition enhanced the rent from Rs. 5/- per month to Rs. 500/- per month and directed the petitioners to pay the same with effect from 9.7.1985, the date when the appeal against the release order was dismissed by the appellate authority and thereafter with effect from 20.7.1999 they were required to pay the rent @ Rs. 1000/- per month, besides to pay a sum of Rs. 2 lakhs to the opposite party No. 2. The petitioners again filed Review Petition No. 113 of 2007 for recall/setting aside the order dated 26.3.2007. During the pendency of the aforesaid review petition, the petitioners moved an application under Section 151 C.P.C. praying for setting aside the order dated 26.3.2007. They also made an application for stay of the orders dated 26.3.2007 and 24.10.2005. Thereafter, the petitioners have also made an application for impleadment of the State of U.P. through Secretary, Urban Department, Lucknow stating therein that they have got the nazul plots in dispute, i.e. plot Nos. 1488, 1491 and 1492 converted into freehold and a sale deed had already been executed in their favour on 29.12.1997. The review petition came up for hearing and was dismissed vide order dated 25.5.2007 and a portion of the judgment dated 26.3.2007 was set aside so far it directed the petitioners to pay sum of Rs. 2 lakhs to the opposite party No. 2 towards rent and damages with effect from 1985. During the pendency of Review Petition No. 351 of 2005, petitioners filed Regular Suit No. 258 of 2006 on 3.4.2006 against the opposite party No. 2 and her sons for permanent and mandatory injunction restraining them not to evict the petitioners forcibly as well as not to interfere with the peaceful possession and further they may be directed through mandatory injunction to remove the construction standing on their plots, which they have got converted from nazul plots to freehold, on which an order was passed on 3.4.2006 directing the parties to maintain status-quo. It is stated that the said order is still in operation and has not been vacated or modified. Opposite party No. 2 after the decision of the writ petition, made an application under Section 23 of the Act for enforcement of the order dated 17.9.1983 passed by the Prescribed Authority in P.A. Case No. 9 of 1982 for getting the possession of the shop in dispute. The said application was registered as P.A. Execution Case No. 21 of 2005. Against the said application, objections were filed by the petitioners stating therein that they are in possession since 1945 over an area of 31.62 sq. mtrs. comprising of plot Nos. 1488, 1491 and 1492 and they had deposited a sum of Rs. 16,442/- through Treasury Challan No. 9 dated 5.8.1996 and after completion of all the formalities, a registered deed has been executed by the Collector on behalf of His Excellency the Governor of U.P. on 29.12.1997 and they became absolute owner of the plots in dispute. They also stated that their names have also been recorded in nazul property register as well as in the assessment register of Nagar Palika Parishad, Raibareli and, therefore, they prayed that the execution proceedings may not be proceeded against them. The petitioners have also stated that they had already filed Regular Suit No. 258 of 2006 and opposite party No. 2 had put in appearance in the aforesaid Suit. Thereafter, petitioners moved an application for recall of the order dated 17.9.1983 on the ground that they became the owner of the shop in dispute vide freehold deed dated 29.12.1997 and, therefore, the order of release dated 17.9.1983 should not be enforced against them and the said order is liable to be recalled in the changed circumstances. After inviting the objections and considering the arguments of the parties, opposite party No. 1 dismissed the said application on 24.8.2009 on the ground that the execution proceedings were pending against the petitioners in pursuance to the order dated 17.9.1983 and during the pendency of the said proceedings, the petitioners after a lapse of about 14 years got the freehold deed executed in their favour and the objections have been raised against the execution proceedings, which were not maintainable and as such the petitioners are not entitled to get the relief and it is beyond the jurisdiction of the executing court to go behind the decree. It was also held that the application was in the nature of review, which the execution court was having no right. Aggrieved with the said order, the present petition has been filed.

(3.) Submission of learned Counsel for the petitioners is that petitioners have acquired larger interest as compared to their lesser interest by virtue of execution of freehold deed on 29.12.1997 in view of the provisions contained under Section 111 (d) of the Transfer of Property Act. He further submits that no freehold deed could have been executed in favour of opposite party No. 2 on 17.9.1999 as the freehold deed has already been executed in favour of the petitioners on 29.12.1997. It is further submitted that opposite party No. 2 has played fraud upon the State Government and while moving the application for freehold she did not disclose before the State Government that a freehold deed has already been executed in favour of the petitioners on 29.12.1997. It is also submitted that once the petitioners acquired the status of the landlord, the subsequent events ought to have been taken into consideration by the trial court while rejecting the application of the petitioners in the changed circumstances and the petitioners could not have been evicted at the instance of the judgment of this Court. In support of his contention he has placed reliance upon the following decisions: