- (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. Brief facts, giving rise to this writ petition, are that a recovery citation of Rs. 14, 077.27 was issued in the year 1971/1972 for recovery of sales tax dues against Mehboob Husain, Mohammad Siddique and Mohammad Shabbir, carrying on business in the name of M/s Mehboob Husain & Co.; M/s Mohd. Siddique & Mohd. Shabbir and M/s K.B. Brick Works. Shri Mehboob Husain and Shri Mohammad Siddique were partners in M/s Mehboob Husain & Co. Shri Mohammad Siddique and Shri Mohammad Shabbir were partners in the firm of M/s Mohd. Siddique & Mohd. Shabbir and Shri Mohammad Shabbir was the proprietor of the firm M/s K.B. Brick Works, which had defaulted in payment of sales tax. The Sales Tax Department issued a recovery certificate through the Collector, Bareilly for recovering the sales tax dues against the aforesaid three firms. The Collector, Bareilly issued warrant of arrest against Shri Mohammad Husain, which was returned with the report that Mohammad Husain had died in November, 1970, and accordingly the proceedings of his arrest was dropped. His House No.66/B-3, Mohalla Sailani, Bareilly was attached vide attachment order dated 19.2.1972. The house was advertised for auction by the Sub Divisional Officer. He carried out the proceedings for sale in his Court room on 22.6.1972 in which the bid of Shri Tauquir Hussain (auction purchaser)-respondent no.5, was accepted. The sale was confirmed on 29.7.1972.
(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/-. In paragraph-5 of the objections, it was submitted that the objector is the sole owner by oral gift of house no. 66, which was gifted away by late Haji Mahboob Husain to the objector in 1958. The objector got it constructed from his own material and funds. The objector is separate from his other brothers both in business and residence and was not partner of the firm Mahboob Husain & Company, and therefore, his house was not liable to be sold. He had also filed Suit No. 522 of 1958 in the Court of Munsif City, Bareilly as exclusive owner of house no. 66, in the life time and to the knowledge of his father and other brothers.;