SHANTI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) (for self and for D.M. Chandrashekhar, C. J.) :-This writ petition has been filed by Smt. Shanti Devi, hereinafter called the 'petitioner', praying that the order passed by respondent No. 3 directing dispossession of the petitioner from one third of house No. 75 situate in Nakhas Kohna, Allahabad, be quashed.

(2.) THE facts leading up to this petition can briefly be stated as under : One Gur Bachan Singh took a loan from the Industries Department of the State of Uttar Pradesh for starting an industry. Sharda Prasad son of Chhote lal, respondent No. 7, offered himself as one of the sureties for repayment of the loan advanced to Gur Bachan Singh. He claimed himself to be the owner to the extent of one-third share in the aforesaid' house. THE loan not having been repaid and Gur Bachan Singh having become insolvent and not being traceable, a certificate was issued by Collector, Allahabad, for recovery of the amount due as arrears of land revenue. In that connection one third portion of the aforesaid house was sold by auction on 17th of October, 1975 and was purchased by Nand Kishore, respondent No. 5. On 6th of March, 1976, the petitioner and her family members were dispossessed from the western half of the house through police force. THE petitioner's case is that Sharda Prasad son of Chhotelal had only one-fourth share in the said house which he had sold away to Bachcha Lal on 2'6th of December, 1960. On 22nd of March, 1966, Mohan Lal, who also had one-fourth share in the said house, together with Bachcha Lal, who had purchased one-fourth share of Sharda Prasad, sold their shares viz. one-half of the house in question, in favour of the petitioner. On 9th of October 1974, the heirs of Bankey Lal, to whom the remaining one-half share in the house belonged, transferred that share to the petitioner and her husband. THE petitioner thus became the sole owner of one half share and co-owner along with her husband of the remaining half share in the house. THE petitioner's case further is that Sharda Prasad son of Chhotelal having transferred his share in the house on 26th of December, 1960, had neither any interest therein on the date he stood surety for Gur Bachan Singh nor could he hypothecate any part of the house and, consequently, the sale by auction of one third part of the house in question was wholly illegal and without jurisdiction.

(3.) LEARNED counsel for the petitioner in reply urged that, according to Rule 273-A of the Zamindari Abolition and Land Reforms Rules, the attachment of immovable property has to take place in accordance with Order 21, Rule 54, CPC and an order to the defaulter is to be issued in Form 73-D, but no compliance thereof was made with the result that the petitioner could not know about the proceedings in which the house was auctioned till she and her family were dispossessed through police force. LEARNED counsel urged that the petitioner could know of these proceedings only after she made inspection of the record " subsequent to her being dispossessed from the house. LEARNED counsel further urged that the formalities prescribed under the Zamindari Abolition and Land Reforms Rules regarding proclamation and conduct of sale were also not duly complied with.