SANGEETA CHANDRA,J. - (1.) Heard Sri Dhruv Mathur along with Sri Devendra Mohan Shukla, Advocates appearing for the petitioner-Smt. Uma Mukharjee, who has been substituted by her legal heirs i.e. her grandsons by an order of the Court dated 23.4.2012, and Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohiuddin Khan and Sri K.K. Sharma, Advocates, appearing for M/s. New Hassan Sahkari Awas Samiti, the private respondents c Pe6 (MS) of 2008 and 5292 (MS) of 2010.
(2.) These writ petitions are being taken up together as they relate to the same petitioners and the challenge raised relates to the same plot of land i.e. Plot No.254/2 at Village Kamta, District Lucknow. Writ Petition No.6016 (MS) of 2008 has been filed, praying for quashing of the order dated 6.9.2005 passed by the Sub Divisional Magistrate concerned in a Suit relating to partition of the land in question, the order dated 10.4.2007 passed by the Additional Commissioner, Lucknow Division, Lucknow, rejecting the Appeal of the petitioners and the order dated 4.11.2008 passed by the Board of Revenue, rejecting the petitioners' Second Appeal also. Writ Petition No.5292 (MS) of 2010 has been filed challenging the order dated 26.8.2010 passed by the opposite party no.1-Special Judge, Ayurvedic Scam Case, Lucknow in Revision filed against the order passed by the Civil Judge in Regular Suit No.320 of 2000. The facts, in brief, are that one Sri Anil Dev Mukharjee, husband of the petitioner Smt. Uma Mukharjee, purchased three plots of land through registered Sale Deed in the name of his 12 year's old minor son Ajay Kumar Mukharjee in Village Kamta on 1.4.1959. The plot numbers given in the copy of the registered Sale Deed filed along with the Writ Petition are Plot Nos.453, 454, 443 ad-measuring 20 Bigha and 5 Biswa. The land in question was later numbered as Gata no.254 and recorded in the name of Ajay Kumar Mukharjee in the revenue records as Bhumidhar during consolidation operations. In 1976, the Urban Land Ceiling and Regulation Act was notified (hereinafter referred to as ''the Urban Land Ceiling Act') and Ajay Kumar Mukharjee was given a notice regarding declaration of vacant land by the Prescribed Authority for the purpose of ceiling. Ajay Kumar Mukharjee filed his objection under Section 8(3), but the Prescribed Authority rejected such objections and declared the land in question as vacant land by order dated 26.11.1979. On 5.2.1987, the State Government declared the area where the plot in question was situated as within the municipal limits of the city of Lucknow. Ajay Kumar Mukherjee died on 29.5.1992. The land in question remained in possession of his widow Reena Mukharjee and minor son Raja Ajay Mukharjee as no action was taken by the State Government for taking possession of land declared vacant on 26.11.1979. After the repeal of the Urban Land Ceiling Act in 1999, Reena Mukharjee and her son Raja Ajay Mukharjee were recorded as tenure holders over Gata no.254 ad-measuring 15 Bigha, 17 Biswa on 25.12.1999. Reena Mukharjee sold off 5 Bighas of land in question to M/s. New Hassan Sahkari Awas Samiti on 19.7.2000. The petitioner-Smt. Uma Mukharjee filed a Suit before the Civil Judge (Senior Division), Malihabad for declaration of her 1/3rd share in the property in question along with a prayer for Permanent Injunction against the opposite parties, restraining further alienation of the property in question. Initially, an Injunction was granted ex-parte on 21.7.2000 by the trial court, restraining the defendants from alienating 1/3rd of the property in question. On service of notice, the defendant filed an application under Order VII Rule 11 of C.P.C., saying that Regular Suit No.320 of 2000 was not maintainable in view of the bar under Section 331 of the U.P.Z.A. and L.R. Act (hereinafter referred to as ''the Act of 1950'). Reena Mukherjee thereafter sold off another 5 Bighas of land to M/s. New Hassan Sahkari Awas Samiti on 19.7.2001 and on the basis of the said Sale Deed, M/s. New Hassan Sahkari Awas Samiti filed a Partition Suit under Section 176 of the Act of 1950 before the Sub Divisional Magistrate, Lucknow. The petitioner-Smt. Uma Mukharjee was not impleaded as a party and the Suit was decreed, giving 2/3rd share of Plot No.254 to M/s. New Hassan Sahkari Awas Samiti and 1/3rd of the remaining plot was declared to be the property of Reena Mukharjee and Raja Ajay Mukharjee. The petitioner being affected challenged the order passed by the Sub Divisional Magistrate in Revision, which was allowed and the matter was remanded for fresh consideration with a direction to the Sub Divisional Magistrate to give an opportunity of hearing to the petitioner. Against the order passed by the Additional Commissioner on 17.3.2007, M/s. New Hassan Sahkari Samiti filed an Appeal before the Board of Revenue, which was rejected on 27.8.2003. On remand, the Sub Divisional Magistrate proceeded to pass the order dated 20.10.2004 holding that the Partition Suit was maintainable and granting Decree of Partition, as claimed by the private opposite parties. Against the order dated 20.10.2004, the petitioner filed Revision No.320/2004-05, which was disposed off on 7.5.2005 with a direction to the Sub Divisional Magistrate to reconsider the question of maintainability of the Suit. The Sub Divisional Magistrate reiterated his earlier decision and by his order dated 6.9.2005 held that the land in question was agricultural land as no declaration under Section 143 of the Act of 1950, had been made with respect to the said land and the question of extension of municipal limits and the question of alteration of land use by issuance of Master Plan declaring the area to be residential would be immaterial in so far as no declaration under Section 143 of the Act of 1950 had been made. The Partition Suit was decreed and the share of opposite party nos.4, 5 and 6 in Writ Petition No.6016 (MS) of 2008 was determined by metes and bounds. The Appeal filed by the petitioner was dismissed by the learned Commissioner on 6.9.2005. Second Appeal No.36 of 2006-07 (Smt. Uma Mukharjee vs. M/s. New Hassan Sahkari Awas Samiti) was also dismissed by the Board of Revenue on 4.11.2008. Writ Petition No.6016 (MS) of 2008 was filed by the petitioner against the orders of the Revenue Courts. No interim order was granted by this Court initially. In Regular Suit No.320 of 2000, initially the trial court rejected the application filed under Order VII Rule 11 of the C.P.C., but a Revision was filed against such an order dated 31.3.2001. The Revisional Court allowed the application under Order VII Rule 11 of C.P.C. and rejected the plaint as not maintainable before the Civil Court by its order dated 26.8.2010, relying on the findings returned by the Revenue Court. Hence, Writ Petition No.5292 (MS) of 2010 was filed. An interim order was granted in Writ Petition No.5292 (MS) of 2010 on the first day of hearing i.e. on 1.9.2010 itself, directing the parties to maintain status quo. It has been alleged during the course of argument that ignoring the said order, Sale Deed was executed by the opposite party nos.2 and 3 in favour of newly impleaded opposite party no.4 to 9, of the remaining 5 bigha and 17 biswa of land of Plot No.254/2.
(3.) Learned counsel for the petitioners has placed reliance upon a Notification issued on 3.2.1987 under Section 3 of the U.P. Nagar Mahapalika Adhiniyam, 1959 in the name of His Excellency the Governor of U.P., declaring the municipal limits of Lucknow city. It has been submitted that the Eastern Boundary of the city of Lucknow has included the whole of the village Chinhat upto NH-28 and Village Kamta has also been included within such municipal limits.;