S.U. Khan, J. - (1.) HEARD learned Counsel for the petitioner. No one appeared for respondents. Building in dispute of which petitioner Sri Thakurji Radha Krishna Birajman Mohalla Kurmitola is landlord was allotted to respondent No. 4 on 12.12.1977 against which a time barred revision was filed by the petitioner (which was registered as Misc. Case No. 261 of 1984) alongwith an application for condonation of delay under section 5 of the Limitation Act. The application for condonation of delay was rejected on 10.5.1985 by IIIrd A.D.J., Azamgarh. Thereafter, District Judge, Azamgarh by order dated 12.7.1985 dismissed the revision as barred by time. Against the aforesaid three orders this writ petition is directed. The property in dispute is House No. 66 -A Kurmitola, Azamgarh. Previously grandfather of respondent No. 4 Mahadeo Singh was living in the house in dispute as licencee. After his death his heirs did not vacate the house hence suit for ejectment was filed which was decreed. First appeal was dismissed. Second appeal was also dismissed by this High Court on 8.1.1975. On 16.9.1975 one Sheo Kumar Singh filed allotment application and R.C. and E.O. on 21.10.1975 allotted the house to Sheo Kumar Singh without notice to landlord. Revision filed by landlord was also dismissed. Both these orders were set aside by this Court in writ petition No. 1592 of 1977 (decided on 3.12.1979) and the matter was remanded to R.C. and E.O. Thereafter petitioner filed an application before R.C. and E.O. for taking possession on 13.3.1980 which was rejected on 12.2.1981 on the ground that house in dispute had meanwhile been allotted to respondent No. 4 on 12.12.1977. It is evident from the record that before passing vacancy declaration order or allotment order in favour of respondent No. 4 no notice was given to the petitioner landlord. Against order of R.C. & E.O. dated 12.2.1981 rejecting petitioner's application for possession, petitioner filed a revision against Sheo Kumar Singh and Awadesh Singh respondent No. 4. The revision was dismissed on 8.3.1984 on the ground that revision should have been filed against allotment order dated 12.12.1977. On 30.5.1984 landlord filed application before R.C. and E.O. for recalling the order of allotment dated 12.12.1977. Thereafter on the advise of counsel revision was filed on 2.7.1984 against allotment order dated 12.12.1977 alongwith delay condonation application. Delay condonation application and revision have been dismissed by impugned orders as stated earlier.
(2.) IN paragraph 9 of the counter affidavit of respondent No. 4, it has been stated that one of the Mutawallis Smt. Kanak Kumari gave her consent for allotment in favour of respondent No. 4 and that petitioner is not sole Mutawalli. It is not denied that no notice to the petitioner was given either before allotment or before declaration of vacancy, if any. In the previous writ petition No. 1592 of 1977 decided on 3.12.1979 Smt. Kanak Kumari was respondent and in the said judgment it was held that petitioner was landlord. In para 9 of the counter affidavit, it has also been stated that in second appeal No. 1352 of 1976 decided on 2.7.1979, it was held that Smt. Kanak Kumari was Mutawalli (copy of the judgment has not been filed). The said judgment of the second appeal even though delivered prior to decision of the earlier writ petition still it was not brought to the notice of the Court at the time of decision of earlier writ petition i.e. 3.12.1979. Earlier judgment of the writ petition is therefore binding in between petitioner and Smt. Kanak Kumari regarding landlord -ship of the house in dispute. It was also not brought to the notice of the Court at the time of decision of the earlier writ petition that Shiv Kumar Singh had vacated the property in dispute and it had been allotted to respondent No. 4. It was argued by learned Counsel of the petitioner that Shiv Kumar Singh was near relation of respondent No. 4 but on the record of this writ petition there is nothing to substantiate the said argument. However, from the conduct of the parties, it is quite clear that respondent No. 4 and Shiv Kumar Singh wear hand in glove to defeat the right of the petitioner. In the facts and circumstances of the case principle of doctrine of lis pendens as provided under section 52 of the T.P. Act is also applicable. The word proceeding used in the section includes writ petition. It has been held in Kedar Nath v. Shiv Narain : AIR 1970 SC 1717 (placing reliance upon : AIR 1967 SC 1440), that principles of the said section apply to involuntary alienation such as Court sales. The principle of section 52 T.P. Act will therefore apply to allotment by R.C. and E.O. in favour of the respondent No. 4 also hence it cannot affect the right of the petitioner under order of this Court dated 3.12.1979.
(3.) THE Revisional Court wrongly rejected the delay condonation application of the petitioner. However, no useful purpose will be served by sending the matter back to the Revisional Court for decision on merit. Allotment order dated 12.12.1977 has also been challenged in this writ petition. I have found that the allotment order is wholly illegal and without jurisdiction.;