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1992 DIGILAW 828 (ALL)

Mahesh Kumar v. Rajdhar

1992-05-28

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This revision petition is directed against the order dated 14.8.85 passed by the Additional Commissioner, Jhansi Division, Jhansi in revision No. 27/126/171 of 1984-85/ Lalitpur preferred against the order dated 22.6.82 passed by the SDO Fahrauni district Lalitpur in suit No. 133 of 1973-74 u/s 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Rajdhar son of Shiv Charan, opposite party No. 1 in the present revision, moved an application before the learned trial court on 21.7.80 with the prayer to expunge the name of Jamuna Prasad, father of the revisionists No. 1, 2 and 3 and record the name of the applicant and his co-tenants in place of Jamuna Prasad. The ground taken for the expunction of the name of Jamuna Prasad are that the applicant had obtained a decree from the court of the Assistant Collector 1st Class. Gopi and others went in appeal against this decree before the Divisional Commissioner. On 3.7.76 the appellate court set aside the decree and remanded back the case to the learned trial court for decision afresh. On 26.8.78, Jamna Prasad moved an application before the learned trial court for the withdrawal of the suit. The learned trial court accorded permission for the withdrawal with permission to file a fresh suit. On the basis of the learned trial court's decree, Jamna Prasad was able to get a parwana issued and got his name recorded. Since the decree on,the basis of which Jamna Prasad was recorded, has been annuled, his name should be expunged. The learned trial court allowed the application on 22.6.82. Jamna Prasad preferred a revision before the Divisional Commissioner. The learned Addl. Commissioner dismissed the revision petition. 3. I have heard the learned counsel for the revisionist. Sri R.K. Yadav, learned counsel for the revisionist has contended that the limitation u/s 144 Cr.P.C. will operate and the application made by Rajdhar is time barred. Reliance has been placed on the Full Bench ruling reported in 1984 AD 76. None appeared for the opposite party to argue the case. 4. I have carefully considered the arguments advanced before me and have also perused the record. The learned trial court had decided the suit on 17.2.73. In pursuance of this decree, Jamna Prasad and others came in possession. None appeared for the opposite party to argue the case. 4. I have carefully considered the arguments advanced before me and have also perused the record. The learned trial court had decided the suit on 17.2.73. In pursuance of this decree, Jamna Prasad and others came in possession. This decree was annulled, by the learned Additional Commissioner with the direction to issue notice to the Gaon Sabha and the State and decide the case on merits after hearing the parties. Rajdhar made an application on 21.7.80. It has been argued before me that an application beyond limitation could not be entertained. I agree with the learned Additional Commissioner that this is not a case of restitution. The suit was directed to be decided on merits. Besides, Jamna Prasad has been permitted to withdraw the suit with permission to file a fresh suit. Having been recorded and in possession on the basis of the decree subsequently annuled, he may negative the case of the defendant by not filing fresh suit and may remain in possession without a decree. At the most, the parties are required to maintain the status quo ante. I, therefore, find no legal infirmity in the orders of the courts below. The ruling referred to above is, therefore, of no help to the revisionist. 5. In the result, this revision fails and is consequently dismissed.