FARUGHUL HASAN Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard Shri B.R. Singh, learned counsel appearing for the petitioners. Learned Standing Counsel appears for the State respondents. Shri K.K. Shangloo appears for the respondent no.5-the auction purchaser.

(2.) THE petitioners have prayed for quashing the recovery certificate; the auction sale dated 22.6.1972; the confirmation dated 11.5.1973 of House No. 66 Sailani, Bareilly. The petitioners have also prayed for setting aside the judgment and order dated 6.1.1986 in Original Suit No. 255 of 1974, passed by the IInd Additional Civil Judge, Bareilly, and the judgement and order dated 21.9.2000 in Civil Appeal No. 10 of 1986 passed by the VIIth Additional District Judge, Bareilly. They have also prayed for a writ of mandamus directing the respondents not to interfere in their peaceful possession over house No. 66 Mohalla Sailani, Bareilly.

(3.) SHRI Mahmoodul Hasan, son of late Mahboob Husain-father of petitioners no.1 to 7, and his widow petitioner no. 8, filed objections to the sale on 27.6.1972 alleging that the attachment memo was prepared by the Amin giving the number of the house as 66, but in the boundaries, house No. 65 was also included. The boundaries of both the houses were wrongly given in the memo. In the southern boundaries there is a house of Mohd. Yasin Akbar and thereafter Gali. The consolidated boundary was prepared by the Amin. The boundary of house No. 66, which was proposed to be sold, was incorrect, and was given as East-house of Sri Ashfaq Ahmad, M.L.A.; West- Rasta; North-house No. 65 belonging to S/s Mohd. Siddique & Mohd. Shabbir sons of Haji Mehboob Hussain, and South-house of Nisar Ahmad. It was further alleged in the objections, that the sale proclamation was not issued 30 days before the sale, nor was affixed on the property sought to be sold. The sale alleged to be conducted in Court house, never took place. There was no occasion nor any specific order or ground for not selling the property at the site, and thus the prospective bidders could not assemble for offering bids. The bids disclosed in the bid sheet were collusive. The Amin had developed bad relations and ill-will with the other sons of Haji Mahboob Husain and thus the bids were fraudulently recorded. The purchaser was a person favourite to the Amin. The persons, who were present in the Court of the S.D.O., Bareilly on 22.6.1972, informed the objector that they did not find any bid invitation or any jalsa (assembly) for sale in the Court at 4.00 p.m. The S.D.O. concerned was also not present till that time. The sale was fictitious and irregular. It was further submitted that no Munadi was ever made at the spot or at any other place for any bidder collected. The notice under Order XXI Rule 66 C.P.C. was never issued or served against any person prior to the sale. Haji Mahboob Hussain died in November, 1970. His heirs were not brought on record. The entire proceedings were taken against the dead person. The value of house no. 66 is much more than Rs. 16, 000/- and the value of properties nos. 65 and 66 is much more than Rs. 16, 000/-. The consolidated value of both the houses is not less than Rs. 60, 000/-.