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2012 Supreme(All) 1392
[2012(7) ADJ 445]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
STATE OF U.P. AND OTHERS ....Appellants
Versus
UMA SHANKAR PARASHAR AND OTHERS ....Respondents
(Second Appeal No. 424 of 2009 and First Appeal No. 1 of 2012, decided on 24th May, 2012)
Counsel :
Ramesh Upadhyay, V.B. Upadhya, S.G. Husnain, G.K. Pandey, M.C. Chaturvedi (C.S.C.) for the Appellants; Prakash Padia, J.J. Munir, M.K. Gupta, Rajesh Yadav, Ram Kaushik, Vatsal Srivastava, R.N. Singh, Ramesh Upadhya and B.B. Paul for the Respondents.
Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 2(2)—Code of Civil Procedure, 1908—Order I, Rule 8, Order VII, Rule 11—Specific Relief Act, 1963—Sections 38 and 41—Land—Vesting in State Government—Determination of—Whether, in absence of evidence and in view of Section 2(2), as well as in view of notification dated 1.9.1969, land in question will be treated to have vested in State Government from the date of notification i.e., 1.7.1952?—Land in dispute lying vacant even until transfer of part of land to Nagar Nigam—No construction made until 1969—Earlier orders passed in favour of respondents-plaintiffs meaningless as passed in summary proceedings—After the notification dated 1.9.1969, position changed—Nothing brought on record that requisite construction towards housing scheme had been made until 1969—Matter remitted back to decide afresh—Direction issued. [Paras 19 to 27]
Result; Appeals Allowed.
Hon’ble S.U. Khan, J.—Order dated 5.1.2012 (on the order sheet) on which date after conclusion of the arguments judgment was reserved is quoted below:
“Heard Sri V.B. Upadhya, learned senior. counsel, Sri S.G. Husnain, learned senior counsel, Additional Advocate General assisted by Sri G.K. Pandey, learned counsel for appellant, Sri R.N. Singh, learned senior counsel, assisted by Sri Ramesh Upadhya, learned counsel for respondent No. 11 Aligarh Development Authority, Sri Ram Kaushik learned counsel for Nagar Nigam Aligarh, respondent No. 8 and Sri B.B. Paul, learned counsel for respondent Nos. 1, 2, 3 and 5.
Judgment reserved. “
2. In the second appeal M/s Bharat Stores Limited had filed impleadment application, which was rejected on 5.1.2012 by the following order:
“Heard Sri K.D. Tripati, learned counsel on this impleadment application filed by M/s. Bharat Store Ltd, As M/s. Bharat Store Ltd. was not party either in the suit or in the First Appeal, hence I do not consider it appropriate to implead it as party in the Second appeal. Moreover, as M/s. Bharat Store Ltd. was not a party in the suit hence judgment would not be binding upon it.
Accordingly, impleadment application is rejected.”
3. Substitution application to bring on record legal representatives of respondent No. 1 in the second appeal was also allowed on 5.1.2012 by the following order:
“Sri B.B. Paul, learned counsel for the respondents states that he has filed Vakalatnama on behalf of Virendra Parasar one of the sons/legal representatives of late Sri Umashankar Parasar. Even though through this substitution application four sons two daughters in law and two grand sons have been sought to be substituted at the place of late Sri Umashanker Parasar, respondent No. 1, however, Sri B.B. Paul, learned counsel states that after the death of Sri Uma Shanker Parasar his son Virendra Parasar became Secretary of the Society of which Sri Umashanker Parasar was Secretary. Accordingly, this substitution application is allowed in part and Sri Virendra Parasar is substituted at the place of Umashanker Parasar, respondent No. 1, in the Second appeal.”
Aligarh Development Authority was directed to be impleaded as one of the respondents in the second appeal through order dated 18.9.2009.
4. At one point of time during hearing of the second appeal it was stated by learned counsel for the respondents that respondent No. 6 had died. However afterwards when it was pointed out by the learned counsel for the appellant State of U.P. that as per his instructions respondent No. 6 was alive, learned counsel for the respondents also stated that under some confusion statement about his death had been made but in fact he was alive.
5. Through order dated 17.5.2010 passed on Application No. 146130 of 2010 filed under Section 24, C.P.C., Civil Appeal No. 35 of 2010 pending before Court of District Judge was summoned to this Court. After hearing on 23.12.2011, the following order was passed in the second appeal regarding consolidation of Civil Appeal No. 35 of 2010 which had been summoned.
“Arguments remain in-conclusive. Put up at 11.30 a.m. on 2.1.2012.
Learned counsel for all the parties state that the judgment which may be passed in this Second Appeal will also completely decide the First Appeal which has been withdrawn to this Court under Section 24 C.P.C. (registered before the Lower Appellate Court as Civil Appeal No. 35 of 2010). Office is directed to allot fresh number to the First Appeal. Shri B.B. Paul, learned counsel who is appearing for the plaintiff-respondents in this Second appeal as well as learned counsel appearing for appellant in this Second Appeal shall also file Vakalatnama in the First Appeal. In any case this order amounts to issuing notice.”
Thereafter, the civil appeal which had been summoned from the Court of District Judge was numbered as First Appeal No. 1 of 2012.
Details of the Suit
6. The second appeal arises out of O.S. No. 241 of 1986 filed by Uma Shanka
