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2021 (9) TMI 1112 - SC - Indian LawsAuction conducted by Moradabad Development Authority (MDA) in respect of the land - auction purchaser who purchased the suit land from the MDA - transferable owner and cultivator of lands - respondent challenged the auction proceedings in the suit on the ground that MDA had title only over the land measuring 200 sq. mt. of the auctioned land, and thus the sale of the remaining land measuring 400 sq. mt. was null and void - HELD THAT:- There is a specific finding of fact in the judgment of the Trial Court that the permission which was issued on 5 May 1993 to Zahid Hussain for the transfer of 1295.04 sq mt of land was in modification of an earlier order dated 29 March 1993. The permission was in respect of the 2000 sq. mt of land which was retained by Zahid Hussain. The High Court has not adverted to this finding of fact at all nor has it found any substantive basis to displace the finding. That apart, it is evident, that the order of the Competent Authority dated 16 March 1988 was set aside in appeal by the District Judge on 6 January 1993 and the case was remanded for fresh adjudication of the excess land in view of the amended Master Plan. In such an instance, when the case was remanded, Zahid Hussain could not have transferred the suit property, having regard to the clear bar which is contained in the provisions of Section 5(3). No transfer of the land could have been lawfully made and any such transfer in contravention with the provision would be null and void. The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal [2003 (2) TMI 493 - SUPREME COURT], where this Court held that after the 1976 amendment, the respondent could file cross-objections against the ‘findings’ of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. On a perusal of the above authorities, it is evident that the principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court’s wide powers to do justice under Article 142 of the Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the ‘aggrieved party’ to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings - it is thus established that it is not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection. In the present case, it is noted that the appellant had raised an objection to the jurisdiction of the Trial Court for entertaining the suit on the ground that an injunction and declaratory relief could not have been given. Although the Trial Court passed a decree in favour of the appellant, it had decided against the appellant on the question of jurisdiction. This finding was not challenged by the appellant before the High Court in the form of a memorandum of cross-objection. The judgment of the High Court makes no mention that a plea of lack of jurisdiction was taken by either the appellant or the MDA. Before this Court, the appellant has not filed the counter-affidavit it had filed before the High Court. Both the High Court and Trial Court have failed to correctly assess the issue regarding the jurisdiction of the civil court to try a suit, which in its essence, arises out of matters pertaining to the ULCRA. The first respondent has made efforts to artfully draft the plaint in a manner that would make it appear as if the issue only pertains to the auction notice issued by MDA. This Court, has time and again, warned against drafting of this nature which seeks to distract attention away from the real cause of action - The findings of the High Court are a non-sequitur since even if Zahid Hussain had title and possession of the suit land at the time of transfer, the purported transfer to the first respondent is null and void. The High Court ought to have upheld the dismissal of the suit on this ground. A plaintiff has to stand on their own legs and the respondent – plaintiff had no valid title or interest in law on the basis of which the suit could have been founded. The respondent – plaintiff had no cause of action to challenge the auction by MDA in favour of the appellant, once the purported transfer was invalid. The purported transfer of the suit land by Zahid Hussain to the first respondent was before the Repeal Act was enacted. The dual conditions stipulated under Section 5(3) of ULCRA were not fulfilled before the transfer was made since the statement under Section 6 had not been submitted and the Competent Authority had not issued a notification under Section 10(1) of the ULCRA (which was in operation at the time). Therefore, even if the Zahid Hussain had the title to the suit land, the transfer to the first respondent was null and void under section 5(3) of ULCRA - the suit is dismissed. Appeal allowed.
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