Khedu Harijan v. Gaon Sabha — 1992 DIGILAW 623 (ALL)

JUDGMENT R.K. Dhusiya, Member. - This reference has been made by the learned Additional Commissioner, Varanasi Varanasi Division, Varanasi by his recommendation order dated 3.8.1982 by which he has made a recommendation to allow the revision, set aside the order dated 7.12.1981 at the trial court remand the case back for decision afresh to the trial court. 2. Briefly stated the facts of the case are that Khedu Harijan filed of suit under Section, 229-B of Z.A. and L.R. Act on 6.9.1978 before the trial court on the ground that he is in possession over the land in suit before 30.6.1975 and has got sirdari right over the land in suit under Section 122-B(4-F) of Z.A. and L.R. Act. The written statement was filed on behalf of State on 7.5.1979 through the Chairman LMC, Mohd, Illiyas Khan and prayed that the copy of plaint be given to him. On 8.6.1979 the date was fixed for filing of the plaint's copy. The respondent was absent. Hence, the case was proceeded ex parte. The trial Court by its order dated 30.11.1979 decreed the suit of the plaintiffs. Against that order a restoration application was filed by the Chairman, LMC, on 23.6.1980 on the ground that he was not served with a notice as such, he had no knowledge of the case ; that there is no thumb impression over the application: that the land in suit is a pokhari as such, no sirdari right could be accrued. Against that the plaintiff Khedu and other filed objection along with the affidavit on 17.10.1980 denied the claim of the Chairman, LMC and stated that the land in suit is not a Pokhari. On 17.11.1980 the pradhan, Mohd. Illyas filed an application that the proceeding is farzi and the delay if any, be condoned. Another application was filed by the Chairman, LMC on 17.11.1980 with the prayer that he does not want to proceed with restoration application because the suit of the plaintiffs has been decreed by the trial court against the State. The trial court by its order dated 7.12.1981 allowed the restoration application of the Chairman, LMC and set aside the ex parte decree dated 30.11.1979. Against that order a revision was preferred before the learned Additional Commissioner, who by his order dated 3.8.1982 made a recommendation as such, the instant reference has come up before me. 3. The trial court by its order dated 7.12.1981 allowed the restoration application of the Chairman, LMC and set aside the ex parte decree dated 30.11.1979. Against that order a revision was preferred before the learned Additional Commissioner, who by his order dated 3.8.1982 made a recommendation as such, the instant reference has come up before me. 3. I have heard the learned counsel for the parties and have also gone through the file. 4. The learned counsel for the revisionist has mainly argued that the gaon Pradhan cannot engage private counsel without the consent of the collector; that the restoration proceeding cannot abate in the consolidation proceeding. In reply it has been argued that the Pradhan has filed the Vakalatnama and he can engage private counsel further argued that the proceeding should be abated under the consolidation proceeding. 5. I find force in the argument put forth by the learned counsel for the revisionist. Further I find that it is the restoration as such, it can't abate under the Consolidation of Holdings Act. In the instant case the learned Additional Commissioner is of the view that the suit of the revisionist was decreed ex parte on 30.11.1979. Against that restoration application was filed on 30.6.1980 but the trial court did not record finding to the effect that the earlier application dated 7.5.1979 was filed by the Chairman of LMC or not. He also pointed out that trial court did not record any finding that the application of the LMC was time barred or not. Thus, the trial Court committed apparent error in not recording any finding as mentioned above. Hence, the recommendation made by the learned Additional Commissioner is liable to be accepted. 6. In view of the above, I allow the revision, set aside the order dated 7.12.1981 of the trial court and remand the case to the trial court for decision afresh in the light of observation made by the learned Additional Commissioner.