Sibghat Ullah Khan, J.

1. HEARD Sri Ravi Kant, learned Senior Counsel for the applicants in the first and third recall applications, Sri P.N. Saxena, learned Senior Counsel in the second recall application and Sri M.A. Qadeer, learned Senior Counsel for the petitioner/ opposite party in all these three recall applications seeking recall of my judgment and order dated 1.10.2007 allowing the writ petition.

2. ALL the learned Counsel has advanced the arguments on the recall applications as well as on the merit of the writ petition. Counter and rejoinder affidavits to the writ petition have also been filed by the applicants in the recall applications.

The first and second recall/ rehearing applications are liable to be dismissed on the ground that the applicants were fully aware of the pendency of the writ petition in question as they had mentioned about it and had also quoted/filed copies of some interim orders passed in two writ petitions pending before Lucknow Bench of this High Court i.e. writ petition No. 5383 (M/B) of 2000 and writ petition No. 3488 (M/B) of 2002. The later writ petition was filed by respondent No. 17/4. However, judgment and order dated 1.10.2007 is set aside on the ground that it was passed without substitution of legal representatives of respondent No. 16 who are applicants in third recall application. Learned Counsel in all the three recall applications have been heard on the merit of the writ petition.

Paras No. 2, 5 & 6 of my judgment dated 1.10.2007 is quoted below:

"Property in dispute is wakf property. The wakf was created through registered deed dated 10.3.1892. On 23.11.1911 the then Mutwalli of the wakf executed a lease deed of part of the land comprised in the aforesaid wakf deed in favour of Hafiz Mohammad Haleem with permission to raise constructions, on annual rent of Rs.350/-. The lease deed was executed for 99 years starting from 1.1.1912.After the death of original lessee Hafiz Mohd. Haleem the leessees right were inherited by S.M. Bashir. Respondents 3 to 5 Sheo Devi and others, wife and sons of late Babu Ram Mishra instituted O.S. No. 57 of 1954 before Civil Judge Kanpur against S.M. Bashir for recovery of Rs.30,000 and odd. The suit was decreed. Thereafter execution application was filed seeking recovery of the decreetal amount from the properties in dispute bearing Nos. 13/387, 13/388 and 13/390. Interest of S.M. Bashir, the judgment- debtor under the lease of 1911 was sought to be attached and sold in the execution. Thereupon the petitioner Mutwalli of the wakf filed objection under Order XXI, Rule 58 C.P.C. on 29.5.1979. Auction sale took place on the next date i.e. 30.5.1979. Thereafter objetions of the petitioner were dismissed on 24.4.1982 by Additional Civil Judge, Kanpur. Objections had been registered as Misc. Case No. 59 of 1979. Against the said order petitioner filed Civil Appeal No. 413 of 1982. IX Additional District Judge, Kanpur Nagar dismissed the appeal on 19.7.1986 hence this writ petition. Property was purchased by respondents 9 to 21. Execution application was registered as Execution Case No. 8 of 1972. True copy of the lease deed, of 1911 is Annexure-2 to the writ petition. Under Clause-5 of the lease deed it is provided that the lessee is authorised to sublet the whole or part of the land and any building erected thereon subject to the same conditions which bind the Lessee for any term not exceeding 5 years. Under the said clause it is further provided that on sub-letting notice must forthwith be given to the lessor in writing. The question to be decided in this writ petition is as to whether tenants/lessees interest in a residential building covered by U.P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972 (U.P. Act No. 13 of 1972) may be attached and sold in proceeding for execution of money decree independently of section 60 (1) (kc) C.P.C. or not. Section 60 C.P.C. provides that : "All saleable property including lands and houses is liable to attachment and sale in execution of a decree." It may be said that if tenant has got absolute right of subletting either express or implied but not prohibited then tenants right may be attached and sold in execution of decree. However, if tenant has got no absolute right to sub-let then tenancy rights cannot be attached or sold in execution of decree. Under Old U.P. Rent Control Act (U.P. Act No. 3 of 1947) as well as under new Act (U.P. Act No. 13 of 1972) sub-tenancy is permitted with the consent of the landlord as well as of District Magistrate (section 25 of U.P. Act No. 13 of 1972). Accordingly, sub-letting even with the express written consent of the landlord is not permissible unless District Magistrate also gives his consent."

3. LEARNED Counsel for the respondents have seriously challenged the existence of Waqf on the ground that a contrary order was passed by the Waqf Board and matter is subjudice in Writ Petition No. 5383 of 2000, Seikh Barik Ali v. U.P. Sunni Central Board of Waqf and others before Lucknow Bench, Allahabad High Court. LEARNED Counsel for petitioner states that the said order was later on recalled by the Wakf Board itself. However no learned Counsel for the applicants has challenged existence of lease deed dated 23.11.1911. In my opinion it is not at all necessary to decide the question of existence of Waqf in these proceedings for three reasons. Firstly, he matter is sub-judice before Lucknow Bench. Secondly, in the lease deed dated 23.11.1911 itself it is mentioned that lesor was mutawalli of Seikh Fakhruddin Haider Waqf. By virtue of section 116, Transfer of Property Act, lessee cannot deny the title of the lessor. Thirdly whether the property in dispute was or was not Waqf would not make much difference for the purposes of the dispute involved in this writ petition for the reason that it is not denied that Hafeez Mohd. Haleem, predecessor-in- interest of S.M. Bashir, the J.D. had only lost rights which were conferred upon him under the lease deed of 23.11.1911.In the absence of the Waqf, Hafeez Mohd. Haleem will have to be treated as ssee of the person who described himself as lessor in the said deed in his personal capacity. The argument that the lease deed was void as there was no Waqf raised by learned Counsel for the respondents is suicidal as in that eventuality they cannot have any right. If the lease deed is held to be void neither Hafeez Mohd. Haleem nor S.M. Bashir can have any right hence in execution of decree against S.M. Bashir, property in dispute could not be sold.

The main point decided by me in the judgment dated 1.10.2007 that in spite of the fact that subletting for five years was permissible under lease deed, subletting was not permissible without the permission of the D.M. has seriously been questioned. However, now there is no need to reconsider the said point thoroughly as the period (99 years) of the lease created through lease deed dated 23.11.1911 has expired (on 22.11.2010). The Courts below had already held in favour of the petitioner that the auction purchaser would be having right till 22.10.2010. The said period has already expired and as informed by learned Counsel for petitioner, suit for eviction on the ground of determination of lease by efflux of time has already been filed. The writ petition has therefore become in fructuous.

4. THE lower Appellate Court held that the auction purchasers would be having only that much right which the J.D. was having. THE Trial Court in its order dated 24.04.1982 held as follows:

"THE arguments of the learned Counsel for the DH have much force and the auction purchaser shall have only those rights which the JD had in the property. Order- Objections under Order XXI, Rule 58, C.P.C. are hereby rejected. THE sale deed dated 30.5.1979 is confirmed and the auction purchaser shall have the rights of the J.D. in the property. I Additional Civil Judge, Kanpur.

The said view was fully approved by lower Appellate Court