# H.K.S. Developers Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-17
- **Case number:** Writ-B No. 1533 of 2021
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/h-k-s-developers-pvt-ltd-v-state-of-u-p-ors-50762
- **Pages:** 9

## Headnote

Sri Punit Kumar Gupta, Sri Abhishek
Shukla, C.S.C.

Consolidation - Title Dispute - Transferee
Pendente Lite - Recall Application - Sale
Deed - Unregistered Deed - Finality of
Order

Held: The petitioner, claiming rights through a
sale deed dated 26.4.2010, executed during
the pendency of consolidation proceedings
and registered on 7.10.2014, after the
revisional court's order dated 17.4.2013, is
not entitled to seek recall of the said order.
The title dispute, originating in 1988 and
finalized
vide
the
Deputy
Director
of
Consolidation's
order
dated
17.4.2013,
attained finality upon dismissal of related
writ petitions on 11.5.2015, based on a
compromise among tenure holders. The
petitioner, as a transferee pendente lite,
cannot reopen the settled title dispute after
a prolonged delay, particularly on the basis
of an unregistered sale deed at the time of
the
revisional
court's
decision.
The
Additional
District
Magistrate
rightly
rejected the petitioner's recall/restoration
application
dated
18.6.2018,
as
the
petitioner's vendors were heard, and the
order dated 17.4.2013 was not ex parte. No
interference warranted under Article 226 of
the Constitution.

Writ petition dismissed, interim order
vacated.

Case Law Discussed:

## Text

9 All. H.K.S. Developers Pvt. Ltd. Vs. State of U.P. & Ors.
813

(a). Service Single No. 2681 of
2010 (Ram Milan Dubey Vs. State of U.P.
and others);

(b). Shravan Kumar Pandey Vs.
State of U.P. and others, 2010 (8) ADJ
243;

(c).
2009
(2)
LBESR
949
(Allahabad) Smt. Raj Bala Sharma Vs.
Sate of U.P. and others.

16. In view of the above discussion,
once I have arrive at a conclusion that there
was no evidence to establish performance
of second marriage during the subsistence
of first marriage, both the orders impugned
are unsustainable and are liable to be
quashed.

17. The writ petition succeeds and is
allowed.

18. The orders dated 04.07.2005 and
23.08.2008 respectively passed by the
District Development Officer, Bareilly and
Appellate Authority are hereby quashed.

19. The respondents are directed to
reinstate the petitioner in service within a
month after receipt of certified copy of
this order. The petitioner shall be entitled
to all financial and other consequential
service benefits from the date of his
dismissal
from
service
till
his
reinstatement and thereafter.
----------
(2023) 9 ILRA 813
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 1533 of 2021

H.K.S. Developers Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal, Poorva Agarwal

Counsel for the Respondents:
Sri Punit Kumar Gupta, Sri Abhishek
Shukla, C.S.C.

Consolidation - Title Dispute - Transferee
Pendente Lite - Recall Application - Sale
Deed - Unregistered Deed - Finality of
Order

Held: The petitioner, claiming rights through a
sale deed dated 26.4.2010, executed during
the pendency of consolidation proceedings
and registered on 7.10.2014, after the
revisional court's order dated 17.4.2013, is
not entitled to seek recall of the said order.
The title dispute, originating in 1988 and
finalized
vide
the
Deputy
Director
of
Consolidation's
order
dated
17.4.2013,
attained finality upon dismissal of related
writ petitions on 11.5.2015, based on a
compromise among tenure holders. The
petitioner, as a transferee pendente lite,
cannot reopen the settled title dispute after
a prolonged delay, particularly on the basis
of an unregistered sale deed at the time of
the
revisional
court's
decision.
The
Additional
District
Magistrate
rightly
rejected the petitioner's recall/restoration
application
dated
18.6.2018,
as
the
petitioner's vendors were heard, and the
order dated 17.4.2013 was not ex parte. No
interference warranted under Article 226 of
the Constitution.

Writ petition dismissed, interim order
vacated.

Case Law Discussed:

1. Thomson Press (India) Ltd. Vs Nanak Builders
& Investors P. Ltd. & ors., AIR 2013 SC 2389 -
Distinguished.
814 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Prayas Buildcon Pvt. Ltd. Vs St. of U.P. &
ors., 2022 AIR (Ald.) 279 - Relied upon.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Rahul Agarwal, learned
counsel for the petitioner, Mr. Punit Kumar
Gupta, learned counsel for respondent no.3
and Mr. Abhishek Shukla, learned Addl.
C.S.C. for the state-respondent.

2. Brief facts of the case are that in
the basic year of the consolidation
operation, plots of khata no.35, was
recorded in the name of Jamuna Prasad,
son of Govind. At the time of verification
of
the
khatauni,
Om
Kumari
and
Krishnawati, being widows of Jamuna
Prasad, were told to be recorded. During
consolidation operation, Om Kumari and
Krishnawati filed their objection that their
name be recorded jointly over the plots of
khata no.35. The Assistant Consolidation
Officer on 2.3.1988 referred the matter
before the Consolidation Officer and the
Consolidation Officer vide order dated
15.3.1988, ordered to record the name of
Om Kumari and Krishnawati jointly, being
the widows of Late Jamuna Prasad and
further ordered to expunge the name of
Jamuna Prasad from the plots of khata
no.35.
Against
the
order
of
the
Consolidation Officer dated 15.3.1988,
Naresh Pal and others have filed appeal
along with prayer for condonation of delay
before
the
Settlement
Officer
(Consolidation). The Assistant Settlement
Officer (Consolidation) vide order dated
27.11.2004, set aside the order of the
Consolidation Officer dated 15.3.1988 and
ordered to record the names of Naresh Pal
and Ved Pal, on the basis of unregistered
will deed. Against the appellate order dated
27.11.2004, Om Kumari and Others filed
revision
being
Revision No.247
and
Surendra & Others have filed revision
being Revision No.290 before the Deputy
Director
of
Consolidation.
The
aforementioned revisions were heard by the
Deputy Director of Consolidation and vide
order
dated
25.1.2007,
both
the
aforementioned revisions were allowed,
setting aside the order of the Assistant
Settlement Officer Consolidation dated
27.11.2004 and remanded the matter back
before the appellate court to decide the
appeal along with the pending appeal filed
by Surendra. The Assistant Settlement
Officer Consolidation vide order dated
30.7.2008 dismissed the appeal filed by
Surendra for want of evidence and appeal
filed by Naresh Pal and Others were
allowed, remanding the matter before the
Consolidation Office to decide the dispute
afresh on merit. Against the order of the
appellate court dated 30.7.2008, Om
Kumari has filed revision being Revision
No. 203 before the Deputy Director of
Consolidation.
The
aforementioned
Revision No.203 was heard by the Deputy
Director of Consolidation and the same was
allowed vide order dated 13.3.2009, setting
aside the orders dated 30.7.2008 and
27.11.2004 and ordered to record the
names of Krishnawati and Om Kumari,
being widows of Jamuna Prasad. One
Kalawati
filed
restoration
application
against the order of the Deputy Director of
Consolidation
dated
13.3.2009
and
Revision No.173 against the orders dated
15.3.1988 and 7.3.2011, passed by the
Consolidation
Officer
as
well
as
30.10.2012, passed by the Settlement
Officer Consolidation, praying that her
name be recorded being daughter of
Jamuna Prasad. In the mutation proceeding
under Section 34 of the U.P. Revenue Act,
the Naib Tehsildar passed an order dated
23.4.2010 for recording the name of will
9 All. H.K.S. Developers Pvt. Ltd. Vs. State of U.P. & Ors.
815
holder, on the basis of registered will deed
dated 2.2.1992, alleged to be executed by
Om Kumari and Krishnawati in favour of
Meena Kumari, wife of Mulayam Singh
(daughter of Om Kumari). Against the
order of mutation, appeal was filed which
was allowed on 30.7.2010 and the matter
was remanded back before the Naib
Tehsildar. The Naib Tehsildar again on
30.4.2011, ordered to record the name of
Meena Kumari, on the basis of registered
will deed dated 2.2.1992. Krishnawati and
Meena Kumari were alleged to execute the
sale deed in favour of the petitioner (H.K.S.
Developers
Pvt.
Ltd.)
on
26.4.2010.
Kalawati was alleged to execute the power
of attorney in favour of Surendra Singh,
son of Brahm Singh on 13.4.2011 which
was later on cancelled on 5.9.2012.
Kalawati
is
alleged
to
execute
the
agreement to sale dated 15.10.2010 in
favour of Rajiv Kumar.

Jamuna Prasad was a Class-IV
employee in the Nagar Nigam, Bareilly. It
has been alleged that Jamuna Prasad had
three wives, Om Kumari, Krishnawati and
Ramdeyi. From the wedlock of Jamuna
Prasad and Ramdei, one daughter Kalawati
was born and from wedlock of Jamuna
Prasad and Om Kumari, Meena Kumar was
born.
The
Deputy
Director
of
Consolidation vide order dated 17.4.2013
allowed the Revision No.203, filed by Om
Kumari and Revision No.173 filed by
Kalawati and ordered to record the name of
Krishnawati, Om Kumari and Ramdeyi,
being widows of late recorded tenure
holder Jamuna Prasad. The revisional court
further ordered to record the name of
Meena Kumari and Kalawati, daughter of
Jamuna Prasad, to be recorded in place of
deceased Om Kumari and Ramdeyi. The
revisional court further ordered that the
partition of the plots of khata except the
chak out plots shall be made 1/3rd, 1/3rd &
1/3rd in respect of Krishnawati, Meena
Kumari and Kalawati, the appellate order
dated
27.11.2004,
passed
in
Appeal
No.145/2004
and
30.7.2008
were
accordingly set aside. Against the order
dated 17.4.2013, Writ B No. 48903/2013
was filed by Smt. Kalawati, Writ B
No.26659/2013 was filed by Smt. Meena
Kumari
and
Another
and
Writ
B
No.26674/2013 was also filed by Meena
Kumari and Another in the year 2013
before this Court. All the three writ
petitions remained pending for about 2
years
and
during
pendency
of
the
aforementioned three writ petitions, parties
have entered into compromise and on the
basis of compromise, the parties have filed
application for dismissing the writ petitions
as withdrawn. This Court vide order dated
11.5.2015 dismissed the writ petitions as
withdrawn,
affirming
the
order
of
revisional court / Deputy Director of
Consolidation
dated
17.4.2013.
After
disposal of the aforesaid three writ
petitions, petitioner filed the application
dated 18.6.2018 before the revisional court
to recall the order dated 17.4.2013 and
restore the revision to its original number in
order to afford opportunity to petitioner
being the vendee of the part of the area of
the plot in dispute. The revisional court /
Additional district Magistrate (Finance and
Revenue)
vide
order
dated
7.6.2019
rejected the restoration / recall application
dated 18.6.2018, hence this writ petition.

3. This Court vide order dated
28.9.2021 has entertained the writ petition
and granted an interim protection. The
order dated 28.9.2021 runs as follows:-

1. Heard Sri Rahul Agarwal,
learned
counsel
for
the
petitioner,
learned Standing Counsel represents
816 INDIAN LAW REPORTS ALLAHABAD SERIES
responded nos. 1 & 2 and perused the
record.

2. Counsel for the petitioner
submits
that
Jamuna
Prasad
was
recorded
tenure
holder
over
the
property in question. Names of Om
Kumari (mother of respondent no.4) and
Krishnawati were ordered to be mutated
in place of Jamuna Prasad, being his
widows vide order dated 15.03.1988
passed by Consolidation Officer. At later
stage, due to intervention of Naresh Pal,
Ved Pal, Surendra, matter was travelled
up to revisional stage and culminated
vide order dated 13.03.2009 passed by
Deputy
Director
of
Consolidation
(respondent no.2) in favour of Om
Kumari and Krishnawati. On the death
of Om Kumari, name of her daughter
Smt. Meena Kumari (respondent no.4)
has been ordered to be mutated, vide
order dated 23.04.2010, on the basis of
registered will deed dated 02.02.1992. On
appeal being filed, matter was remitted
and
again
decided
in
favour
of
respondent
no.4
vide
order
dated
30.04.2011 passed by Nayab Tehsildar.
In the meantime respondent no.4 and
Krishnawati had executed a resisted sale
deed dated 26.04.2010 in favour of the
petitioner.

3. At very belated stage Smt.
Kalawati (respondent no.3), claiming her
right and title being daughter of Ram
Devi (weeded wife of Jamuna Prasad),
has filed restoration application dated
31.08.2010 against the order dated
15.03.1988
passed
by
Consolidation
Officer, which was rejected by order
dated 17.10.2011 and, in appeal, same
was
affirmed
vide
order
dated
30.10.2012 passed by Settlement Officer
of Consolidation.

4. Having being aggrieved,
respondent no.3 has filed Revision
No.173
against
the
order
dated
30.10.2012
as
well
as
restoration
application dated 22.11.2012/ 01.12.2012
against the order dated 13.03.2009
passed in Revision No.203, which had
been
filed
by
Om
Kumari
and
Krishnawati.

5. By common order dated
17.04.2013, respondent no.3 has allowed
the restoration application as well as
both the revisions and directed to record
the name of respondent no.3 alongwith
the name of respondent no.4 and
Krishnawati, having 1/3 share each.
Restoration application filed by the
petitioners against the order dated
17.04.2013 is rejected by impugned order
dated 07.06.2019.

6. Grievance of the petitioner is
as follows:-

i. Respondent no.2 has illegally
allowed
the
restoration
application,
delay
condonation
application
and
revision no.203 as well as revision no.173
simultaneously by common order dated
17.04.2013
without
affording
opportunity of hearing to the petitioner,
who is a vitally interested person in the
property in question on the basis of sale
deed dated 26.04.2010 and deserves to be
heard in opposition to the restoration
application and revision.

ii. Respondent no.2 has illegally
admitted the additional evidence at the
revisional
stage
without
giving
opportunity of rebuttal and has illegality
recognized
the
right
and
title
of
respondent no.3, being a daughter of
Jamuna Prasad & Ram Devi on the basis
9 All. H.K.S. Developers Pvt. Ltd. Vs. State of U.P. & Ors.
817
of Photostat copy of the documents
which are not admissible in evidence.
Apart from that police report can not be
a
conclusive
proof
to
established
relationship of the daughter and father.

iii. No cogent reason has been
assigned by respondent no.3 in keeping
mum, since 15.03.1988 till August-2010,
as to why she could not get her right and
title adjudicated upon by the competent
court being a daughter of Jamuna
Prasad
and
approached
the
consolidation court after several years of
denotification under section 52(1) of
UPCH Act.

iv.
Restoration
application
moved by the petitioner has illegally
be
rejected
on
the
ground
that
petitioner has purchased property
during the succession/mutation case of
Jamuna Prasad, whereas succession of
Jamuna Prasad had already been
decided vide order dated 13.03.2009
passed by respondent no.2. In the year
2010 name of respondent no.4 was
mutated in place of her mother Smt.
Om
Kumari.
Eeven
otherwise,
restoration
application
dated
31.08.2010 and another restoration
application
dated
22.11.2012/
01.12.2012 were field after sale deed
dated 26.04.2010.

v. Revision No.173 was arising
out of rejection of the restoration
application dated 31.08.2010, but the
same has illegally been allowed without
discussing the merits of the restoration
application.

7.
Matter
requires
consideration.

8. Issue notice to the respondent
nos.3 to 5, returnable at an early date.

9.
List
this
matter
on
24.11.2021.

10. In the meantime, parties are
directed to exchange their respective
affidavits.

11. Until further orders of this
Court, effect and operation of the orders
dated 17.04.2013 and 07.06.2019, passed
by
the
Deputy
Director
of
Consolidations, Annexure Nos.7 and 20
respectively, shall remain stayed.

4. In pursuance of the order dated
28.9.2021 passed by this court, respondent
no.3 has put in appearance and filed a recall
application, recalling the order dated
28.9.2021. Respondent no.3 also filed a
S.L.P. No.5881/2022 before the Hon'ble
Apex Court against the interim order dated
28.9.2021, The Hon'ble Apex Court vide
order dated 8.4.2022 disposed of the S.L.P.,
directing this Court to decide the main writ
petition along with recall / stay vactaion
application within 8 weeks.

5. In compliance of the order of
Hon'ble Apex Court dated 8.4.2022, the
matter was nominated to another court by
Hon'ble Chief Justice but the same was
released by earlier court, as such, Hon'ble
Chief Justice vide order dated 28.3.2023
has nominated the matter to this Court for
disposal in pursuance of the order of
Hon'ble Apex Court. This matter was listed
on several dates but on the request of
counsel for the petitioner, the matter was
adjourned, accordingly, the matter could
not be heard and disposed of within time
limit fixed by Hon'ble Apex Court
818 INDIAN LAW REPORTS ALLAHABAD SERIES
however matter has been heard finally on
2.8.2023.

6.

Counsel
for
the
petitioner
submitted that petitioner, on the basis of the
sale deed dated 26.4.2010, executed in his
favour, is entitled to be impleaded and
heard in the proceeding, under Section 48
of the U.P. C.H. Act. He further submitted
that recall / restoration application filed by
the petitioner, has been rejected by the
Additional District Magistrate/revisional
court illegally / arbitrarily. It is further
submitted that the order dated 17.4.2013
passed
by
the
Deputy
Director
of
Consolidation in the revisions filed by Om
Kumari and Kalawati is ex parte, as such,
the order dated 17.4.2013 was liable to be
recalled at the instance of the petitioner but
the application filed by the petitioner has
been rejected in arbitrary manner. He also
submitted that the Addl. District Magistrate
has wrongly held that the sale deed of the
petitioner is during pendency of the
proceeding, as such, petitioner is not
entitled to be heard in the proceeding. He
further placed reliance on the decision of
the Apex Court reported in AIR 2013 SC
2389, Thomson Press (India) Ltd. vs.
Nanak Builders and Investors P. Ltd.
and Others in order to demonstrate that
transferee pendente lite is entitled to be
impleaded in the proceeding as the interest
has been devolved upon the transferee on
the basis of the sale deed, being the
bonafide purchaser of the plot in dispute.
He also submitted that the impugned orders
be set aside and the petitioners should be
afforded opportunity of hearing before
passing the final order in respect to the plot
in dispute.

7. On the other hand, Mr. Punit
Kumar Gupta, appearing for respondent
no.3 submitted that writ petition filed by
the petitioner, challenging the order dated
17.4.2013, is not maintainable in view of
the provision contained under Chapter 22
Rule 1 of the Allahabad High Court Rules,
1952. He further submitted that the earlier
writ petitions filed by the tenure holder
against the order of the Deputy Director of
Consolidation
dated
17.4.2013,
were
dismissed as withdrawn, on the basis of
compromise, taken place between the
tenure holders, as such, the petitioner has
no right to file recall/restoration application
against the order dated 17.4.2013 before
the Deputy Director of Consolidation as the
order dated 17.4.2013, passed by the
Deputy Director of Consolidation has
attained finality due to disposal of the writ
petitions filed by the tenure holders against
the order dated 17.4.2013. He also
submitted that answering respondent is in
peaceful possession of the area and khasra
no. 355 and the allegation of the petitioner
that petitioner is in peaceful possession of
the entire area of khasra no.355 is wrong.
He further submitted that there is inter-se
dispute between the predecessor-in-interest
Kalawati and Meena Kumari as well as the
petitioner. He also submitted that the
petitioner purchased the property during the
pendency of the proceeding in the year
2010 while the Deputy Director of
Consolidation passed the final order dated
17.4.2013, declaring 1/3rd, 1/3rd and 1/3rd
share to the tenure holders, as such,
petitioner cannot claim any right and title
on the basis of sale deed alleged to be
executed on 26.4.2010. It is further
submitted that the sale deed alleged to be
executed in favour of petitioner on
26.4.2010,
was
not
registered
upto
7.10.2014, as such, there was no occasion
at all by the revisional court to consider the
claim of the petitioner, on the basis of
unregistered
sale
deed.
He
further
submitted that the revisional court has
9 All. H.K.S. Developers Pvt. Ltd. Vs. State of U.P. & Ors.
819
decided the dispute finally on 17.4.2013, as
such, the sale deed alleged to be registered
on 7.10.2014 will not give any right to the
petitioner. It is also submitted that the
revisional court has rightly decided the
dispute vide order dated 17.4.2013. It is
further submitted that during pendency of
the writ petition before this Court against
the order dated 17.4.2013, an amicable
settlement has taken place between Meena
Kumari, Krishnawati, Kalawati, Roopram
and on the basis of settlement/compromise,
the writ petitions filed against the order
dated
17.4.2013
were
dismissed
as
withdrawn, affirming the order of the
Deputy Director of Consolidation dated
17.4.2013. It is further submitted that the
writ petition deserves to be dismissed and
interim order dated 28.9.2021 is liable to be
vacated. He further placed reliance upon
the judgment of this Court, reported in
2022 AIR (Ald.) 279, Prayas Buildcon
Pvt. Ltd. vs. State of U.P. through
Principal Secretary, Housing and Urban
Planning
and
Others,
in
order
to
demonstrate that the subsequent writ
petition on the same cause of action will
not be maintainable.

8. I have considered the arguments
advanced by learned counsel for the parties
and perused the records.

9. There is no dispute about the fact
that the title revision under Section 48 of
the U.P. C.H. Act filed by parties to the
title revision was decided vide order dated
17.4.2013,
passed
by
the Additional
District Magistrate/Deputy Director of
Consolidation in Revision Nos. 203 & 173,
by which 1/3rd, 1/3rd & 1/3rd share given
to the parties. There is also no dispute
about the fact that writ petitions filed
against the order dated 17.4.2013, were
dismissed as withdrawn, on the basis of
compromise filed in the pending writ
petition. There is also no dispute about the
fact that recall/restoration application filed
by the petitioner on the basis of sale deed
alleged to be executed on 26.4.2010 and
registered
on
7.10.2014,
before
the
revisional court, against the order dated
17.4.2013,
has
been
dismissed
vide
impugned order dated 7.6.2019.

10. It is material that consolidation
dispute relating to title arisen in the year
1988 in respect to the holdings of Jamuna
Prasad, was contested and ultimately the
Deputy Director of Consolidation vide
order dated 17.4.2013 decided the title
dispute among the tenure holders, giving
1/3rd share each to them. It is also material
that the writ petitions filed, challenging the
order dated 17.4.2013, was decided by this
Court 11.5.2015, on the basis of amicable
settlement, took place among the tenure
holders, giving the finality to the order of
the Deputy Director of Consolidation dated
17.4.2013.

11. Since the order dated 17.4.2013 has
been maintained by this Court, while
dismissing the writ petitions as withdrawn, as
such, petitioner is not entitled to file recall /
restoration application after 5 years before the
Deputy Director of Consolidation to recall
the order and afford opportunity to the
petitioner, on the basis of unregistered sale
deed, alleged to be executed on 26.4.2010
and subsequently registered on 7.10.2014.
The Additional District Magistrate/revisional
court
while
rejecting
the
petitioner's
recall/restoration application vide order dated
7.6.2019, has recorded finding that petitioner
has no right to file recall application, being
transferee pendente lite.

12. The finding recorded by the Addl.
District Magistrate while rejecting the
820 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's restoration application vide
order dated 7.6.2019 will be relevant for
perusal which is as under:-

मैने स्वद्वान अस्धवक्ताओं द्वारा प्रथतुत तकों के
पररप्रेक्ष्य में पत्रावली पर उपलब्ध अस्िलेखो का पररर्ीलन व
परीक्षण स्कया। स्वद्वान अस्धवक्ताओं द्वारा प्रथतुत तकों तिा पत्रावली
पर उपलब्ध प्रपत्रों से यह तथ्य थपष्ट होता है स्क वादान्तिशत िूस्म
िाटा संख्या 355 के मूल काश्तकार जमुना प्रसाद के उत्तरास्धकार
स्नधाशरण हेतु वाद की स्नरन्तरता में श्रीमती कलावती व ओमकुमारी
द्वारा स्दनांक 26.04.2010 को पुनशथिापन प्रािी के पक्ष में स्वक्रय
पत्र का स्नष्पादन स्कया िया िा। थपष्टतः स्वक्रय पत्र
Pendentelite होने की दर्ा में पुनशथिापन प्रािी को
Pendentelite क्रेता के अस्धकार ही प्राप्त होते है। यह िी
प्रासंस्िक है स्क स्कसी िी क्रेता को अपने स्वक्रेता के अस्धकारी से
अस्धक अस्धकार प्राप्त नही हो सकते। उप संचालक चकबन्दी के
समक्ष स्निरानी के स्नथतारण में पुनशथिापन प्रािी के स्वक्रेता श्रीमती
कलावती व ओमकुमारी पक्ष िे तिा उक्त स्वक्रेता पक्षों को सुनवाई
व साक्ष्य का अवसर स्दये जाने के उपरान्त ही आदेर् स्दनांक
17.04.13 पाररत स्कया िया। उक्त स्थिस्त में आदेर् स्दनांक
17.04.2013 को एक पक्षीय आदेर् अवधाररत नहीं स्कया जा
सकता। तदनुसार उपरोक्त स्ववेचना के क्रम में पुनशथिापन प्रािशना पत्र
स्दनांक 18.06.2018 सारहीन होने की स्थिस्त में स्नरथत स्कये
जाने योग्य है।

अथतु पुनशथिापन पत्र स्दनांक 18.06.2018 स्नरथत स्कया
जाता है।

स्दनांक 07/06/2019
 (मनोज कुमार पाण्डेय)

 अपर स्जलास्धकारी (स्व०/रा०)

 बरेली।

13.

Considering
the
finding
recorded
by
the
Addl.
District
Magistrate/revisional court, there is no
scope for interference under Article
226 of the Constitution of India at the
instance of the petitioner as petitioner
is claiming right on the basis of
unregistered
deed,
alleged
to
be
executed on 26.4.2010, which was
registered in the year 2014, i.e., after
the date of decision the title dispute by
the revisional court.

14. Once the title dispute under
the U.P. C.H. Act, at the instance of
the tenure holders claiming right from
the
recorded
tenure
holders,
has
attained finality, the petitioner cannot
reopen the matter after such a long
period, on the basis of sale-deed which
was unregistered on
the date of
decision of revision vide order dated
17.4.2013. It is also material that
dispute against the basic year entry
was going on for more than 25 years
and the same has attained finality in
the
year
2013,
as
such,
the
recall/restoration filed by the petitioner
on
8.6.2018
to
reopen
the
title
proceeding further, has been rightly
refused
by
the
Addl.
District
Magistrate while passing the order
dated 10.4.2019.

15. The case law cited by learned
counsel for the petitioner is not
applicable
in
the
facts
and
circumstances mentioned above.

16. Considering the entire facts
and circumstances of the case as well
as the finding recorded by the Addl.
District Magistrate, while rejecting the
recall/restoration application, filed by
the
petitioner,
no
interference
is
required in the matter.

17.

The
writ
petition
is
accordingly dismissed. Interim order
granted on 28.9.2021 stands vacated.

18. All the pending applications
in the writ petition stand disposed
of.
----------
9 All. Arun Kumar Jain & Ors. Vs. P.O., Debts Recovery Tribunal, Allahabad & Ors.
821
(2023) 9 ILRA 821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 10936 of 2014

Arun Kumar Jain & Ors. ...Petitioners
Versus
P.O., Debts Recovery Tribunal, Allahabad
& Ors. ...Respondents

Counsel for the Petitioners:
Sri H.N. Singh (Sr. Adv.), Sri Vineet Kumar
Singh, Sri Sudeep Harkauli, Sri Shekhar
Chaudhary

Counsel for the Respondents:
Standing
Counsel,
Sri
Brijesh
Kumar
Kesharwani, Sri Anadi Krishna Narayana,
Sri D.V. Jaiswal, Sri K.M. Asthana, Sri
Manish Mehrotra, Sri Rajesh Kesarwani, Sri
Sandeep Kumar Singh

Civil
Law
-
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 - Section 13(2), 13 (3A), 13(4) &
18(1)- Security Interest (Enforcement)
Rules, 2002 - Rule (8)(1), 9(3), 9(4) -
Auction
held
on
12.08.2010,
auction
purchasers paid earnest amount before
auction proceedings and 25% of sale
amount deposited on next working day -
Remaining
75%
was
due
by
26/27.08.2010
-
Meanwhile,
on
23.08.2010, DRT granted borrowers 30
days to clear dues, they failed to do so -
Anticipating default, auction purchasers
paid
remaining
amount
between
21.09.2010 and 25.09.2010 - Though
beyond 15 days, delay is explained, causes
no prejudice to borrowers - During writ
proceedings, borrowers failed to offer
amount - Whether 25% sale amount
includes earnest money, if deposited on
next working day, and whether amended
Rule 9(3) of Rules, 2002 applies - DRT
took rigid view requiring 25% deposit on
auction day itself - Mandatory provisions
must not be enforced in way that makes
compliance impractical - Act of auction
purchasers
was
under
category
of
'immediately',
without
any
delay,
prescribed
procedure
followed
-
Amendment clarified that 25% includes
earnest money already deposited - In view
of sale notice, bank's reply and rule
clarification, DRAT erred in treating it
otherwise - Impugned order erroneous,
hence, set aside. (Para 20, 23, 26, 29, 33,
35)

Writ Petition allowed. (E-13)

List of Cases cited:

1. General Manager, Sri Siddheswara Coop. Bank
Ltd. & anr. Vs Ikbal & ors.. (2013) 10 SCC 83
(Para 19)

2. Zile Singh Vs St. of Har. & ors., (2004) 8 SCC
1 (Para 14 to 18)

3. Varimadugu Obi Reddy Vs B.Sreenivasulu &
Ors, (2023) 2 SCC 168 (Para 44 to 46)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

IMPUGNED ORDER

1. This writ petition is being filed by
auction purchasers being aggrieved by
impugned order dated 19.11.2013 passed
by Debt Recovery Appellate Tribunal,
Allahabad in Appeal No. R-214 of 2013
whereby said appeal filed by petitioners
was dismissed. By amendment, petitioners
have also challenged the order dated
23.10.2013 passed by Debts Recovery
Tribunal,
Allahabad
in
Securitization
Application No. 153 of 2009.

FACTUAL MATRIX