LUCKNOW DEVELOPMENT AUTHORITY Vs. AJAY PRAKASH & ORS.

JUDGEMENT

(1.) This is an appeal under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'C.P.C.') filed by the appellant (defendant No.1) against the order dated 11th July, 2019 passed by learned Civil Judge (Senior Division), Lucknow on an application filed under Order XXXIX Rules 1 and 2 of the C.P.C. whereby the appellant was restrained from interfering in the peaceful possession of respondents No.1 and 2 (plaintiffs) except in due course of law. It was clarified that the said interim order will not apply to the acquired land.

(2.) The brief facts giving rise to the present appeal are that respondents No.1 and 2 (plaintiffs) filed a suit for permanent and mandatory injunction against the appellant (defendant No.1) and respondent No.2-Nagar Nigam, Lucknow (defendant No.2). The case of the plaintiffs is that plaintiff No.1 is owner and in possession of Plot No.507 admeasuring 8 bigha 15 biswa, Plot No.497 admeasuring 3 bigha 7 biswa and Plot No.498 admeasuring 1 bigha 13 biswa situated in Village Bilha, Ujarion, Pargana, Tehsil and District Lucknow; the said property is an ancestral property of the plaintiff and is recorded in the name of his father and after the death of father of plaintiff No.1, plaintiff No.1 inherited the same; a notice under Section 8 of the Urban Land (Ceiling and Regulation) Act, 1976 was issued by the Prescribed Authority/Joint Director, Urban Land Ceiling Lucknow for the purpose to acquire excess surplus land under ceiling limit and objections were invited; late Manohar Singh, father of plaintiff No.1, appeared and filed his objections before the prescribed authority and the competent authority passed an order dated 14th November, 1977 declaring an area of 72912.825 sq. meter out of the total area of the property in suit as surplus land under Section 10 (1) of the said Act of 1976; in the meantime, father of plaintiff No.1 died and the plaintiff had no knowledge of the ceiling proceedings and the order passed therein; order dated 14th November, 1977 could have attained finality subject to appeal under Section 10 (1) of the said Act of 1976; as soon as the plaintiff got notice about order dated 14th November, 1977, he preferred an appeal under Section 10 (1) of the said Act of 1976 before learned District Judge, Lucknow, which was registered as Case No.677 of 2004 (Ajay Prakash vs. Prescribed Authority).

(3.) It is stated that the possession of the surplus land was not recovered from predecessor of the plaintiff under Section 10 (5) of the said Act of 1976 and as per the provisions of Section 4 of the Repealed Act, 1999, all pending proceedings regarding property in suit stood abated. It is also stated that learned District Judge directed the State Government to file official document regarding clarity on the point of possession of the disputed property in question; the Additional District Magistrate/Competent Authority Urban Land Ceiling, Lucknow issued letter dated 26.02.2005, wherein it was specifically admitted that since the proceedings under appeal had not attained finality, therefore, there was no question to recover possession of the property in suit under Section 10 (5) of the said Act of 1976.