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Allahabad High Court · body

2000 DIGILAW 1272 (ALL)

GAURASH AHUJA v. MOHD AYUB

2000-09-27

O.P.GARG

body2000
O. P. GARG, J. By means of this writ petition under Article 226 of the Constitu tion of India the petitioner, who was defen dant No. 3 in revenue suit No. 213/151 of 1994 under Sections 229 B, 209 and 164 of U. P. Z. A. and L. R. Act instituted by Mohd. Ayub, respondent No. 1, has challenged ex-parte decree in the suit aforesaid passed on 9-9-1994, order of dismissal dated 2-8-1995 passed in first appeal No. 130 of 1995 and order dated 29-12-1995 passed by the Board of Revenue dismissing the second appeal No. 30/1994- 95 as well as order dated 11-3-1996 rejecting the review ap plication No. 30/1995-96, which are respectively Annexures - 5,7,9 and 10 to the petition. It is prayed that the aforesaid orders be quashed. 2. Counter rejoinder and supplemen tary affidavits have been exchanged. 3. Heard Sri G. N. Verma, Senior Ad vocate, assisted by Sri. D. N. Jaiswal, learned counsel for the petitioner as well as Sri. Ajeet Kumar for respondent No. 1 and learned Standing counsel at consider able length. 4. The property in dispute, which is in the form of agricultural land, is located in village Shaha alias Pipalgaon, Tehsil Chail, District Allahabad. Undisputedly, one Madan Lal Ahuja was record landholder. The said land was acquired by the State Government by invoking the provisions of the Land Acquisition Act for the benefit of the Allahabad Development Authority. The amount of compensation is in deposit. Smt. Pushpa Sachdeva, residing at Delhi, is admittedly the daughter of deceased Madan Lal Ahuja. The present petitioner, Gauresh Ahuja, claiming himself to be the adopted son of late Madan Lal Ahuja, set up a Will purported to have been executed by the landholder in his favour. On the strength of the alleged Will he filed a tes tamentary case before this Court, which was ultimately registered as Testamentary Suit No. 1 of 1991. The said suit was con tested by Smt. Pushpa Sachdeva. who took two distinct pleas, firstly that the petitioner Gauresh Ahuja was never adopted by her father and secondly there was no occasion for Madan Lal Ahuja to execute a Will in favour of the petitioner and that the Will set up by the petitioner was forged and fictitious. The said suit was con tested by Smt. Pushpa Sachdeva. who took two distinct pleas, firstly that the petitioner Gauresh Ahuja was never adopted by her father and secondly there was no occasion for Madan Lal Ahuja to execute a Will in favour of the petitioner and that the Will set up by the petitioner was forged and fictitious. The said tes tamentary suit was decided on 10-2-1998 by this Court and a copy of the judgment is Annexure-1 to the Supplementary Counter Affidavit of respondent No. 1. By a very detailed and elaborate judgment rendered by Honble S. K. Phaujdar, J. it was held that the petitioner Gauresh Ahuja was not the adopted son of late Madan Lal Ahuja and that he has acquired no rights in the disputed property on the strength of the alleged Will, which was the product of fraud and undue influence. The petitioner has preferred a Special Appeal No. 207 of 1998, which is still pending. 5. In the wake of the above facts, now let us examine the actual controversy raised in the present petition. Mohd. Ayub, respondent No. 1, filed a revenue suit No. 213/151 of 1994 for the relief of declaration of his title over the disputed land on the ground that late Madan Lal Ahuja, the recorded landholder, trans ferred possession of the land in question in his favour to secure the payment of Rs. 50,000/- by way of loan. In the said suit, besides the State of U. P. and the Gaon Sabha, Gauresh Ahuja and Smt. Pushpa Sachdeva were impleaded as defendants No. 3 and 4. Smt. Pushpa Sachdeva filed a written statement. The trial Court Le. Ad ditional Sub-Divisional Officer, Chail found that inspite of sufficient service Gauresh Ahuja, defendant no. 3 (present petitioner) had not filed written state ment. The case proceeded ex-parte against him. The relief of. declaration as, claimed by Mohd. Ayub, respondent No. 1 was granted on 9-9-1994. The present petitioner challenged the ex-parte decree by taking recourse to two separate proceedings. He filed an application under Order IX Rule 13 C. P. C. before the trial Court and simultaneously also preferred a first appeal before the Additional Com missioner. It was registered as first appeal No. 130 of 1995. While the application under Order IX Rule 13 remained pending the first appeal filed by the petitioner was dismissed on 2-8-1995. He filed an application under Order IX Rule 13 C. P. C. before the trial Court and simultaneously also preferred a first appeal before the Additional Com missioner. It was registered as first appeal No. 130 of 1995. While the application under Order IX Rule 13 remained pending the first appeal filed by the petitioner was dismissed on 2-8-1995. Against the said order the petitioner approached Board of Revenue by filing second appeal No. 30/1994- 95. This second appeal was dis missed on 29-12-1995. An observation was made by the learned Member, Board of Revenue that the appeal was not main tainable as the appellant (present petitioner) had already moved an applica tion under Order IX Rule 13 C. P. C. , which was pending. The petitioner preferred a review application (No. 30/1995-96) taking the plea that the application under Order IX Rule 13 C. P. C. became infructuous as he had adopted the course of pursuing the appeal and second appeal. This review application was dismissed by the Board of Revenue by order dated 11-3-1996. It is in these circumstances the petitioner has come before this Court by filing the present writ petition to challenge the various orders aforesaid passed in the suit, first appeal, second appeal and the review application. 6. The learned counsel for the petitioner vehemently argued that since the ex-parte decree was passed against the petitioner without effecting service upon him the decree is illegal and cannot be enforced against him. It was urged that the entire hierarchy of the revenue Court, right from trial Court to the Board of Revenue, have not appraised the real con troversy and have failed to record a categorical finding whether the service of the summons, if at all issued in the suit, had been effected on him or not. 7. This petition was earlier heard by Honble Sudhir Narain J. , who by order dated 18-11-1996 remitted the issue with regard to the service of summons on the petitioner to respondent No. 5. ie. first appellate Court (Additional Commis sioner ). 7. This petition was earlier heard by Honble Sudhir Narain J. , who by order dated 18-11-1996 remitted the issue with regard to the service of summons on the petitioner to respondent No. 5. ie. first appellate Court (Additional Commis sioner ). The relevant portion of the order reads as follows: "considering the facts of the present case an issue is remitted to respondent No. 5 to record finding as to "whether the petitioner was served, with the notice in accordance with law" and such findings shall be recorded on the basis of the material already on record without taking into consideration any additional evidence which might have been adduced by the parties in the application to set aside exparte decree. The finding shall be recorded after giving an oppor tunity of hearing to the parties. The finding shall be recorded within three months from the date of production of certified copy of this order and shall be remitted to this Court in this petition. The writ petition shall be listed for hearing after finding is received from respondent No. 5. In the meantime, the decree shall not be ex ecuted. The amount which is under deposit with the Land Acquisition Authorities shall be in vested in fixed deposits for one year in a nationalised bank so that the person who maybe entitled to the amount may get the same. The Land Acquisition Authorities shall make neces sary deposits accordingly within ten days from the date of production of certified copy of this order. Dt/18-11-96 Sd/-Sudhir Narain" Pursuant to the above order the Addi tional Commissioner, Allahabad, respon dent No. 5 has recorded the finding on 26-2-1996 that substituted service on the petitioner had been effected by affixation and the said service was treated to be suffi cient under the provisions of Order V Rule 17 of the Code of Civil Procedure. This finding has been assailed by the petitioner by filing a miscellaneous application No. 38264 of 1997 supported with an affidavit dated 22nd May, 1997. The stand taken by the petitioner is that the procedure for service in the revenue suits/ cases has been provided under Chapter II, Rules 74 and 75 of the Revenue Court Manual and that the reliance on the provisions of the Code of Civil Procedure is misplaced. 8. The stand taken by the petitioner is that the procedure for service in the revenue suits/ cases has been provided under Chapter II, Rules 74 and 75 of the Revenue Court Manual and that the reliance on the provisions of the Code of Civil Procedure is misplaced. 8. There is no quarrel with regard to the legal position that the factual aspect of the controversy cannot be canvassed or sifted in writ jurisdiction by this Court. The fact remains that a finding of fact has been recorded both by the trial Court as well as the first appellate Court that the present petitioner, who was defendant No. 3 in the revenue suit, had been sufficiently served and since he failed to file a written statement the suit proceeded ex-parte against him. The decree was assailed by the present petitioner in the first and second appeals followed by a review application, but was not met with any better luck. The case against the petitioner stands con cluded by the findings recorded by the revenue Courts. This Court would be chary enough in transgressing its limit by taking another view of the matter. Smt. Pushpa Sachdeva, defendant No. 4 and presently respondent No. 2 to this writ petition, had supported the case that her father had taken a loan of Rs. 50,000/- from respondent No. 1. The document by which the loan was advanced was not only signed by Smt. Pushpa Sachdeva, daughter of the executant, but also by her son Nitin Sach deva. The findings of facts, which stand confirmed and concluded by the various orders of the revenue Courts including the Board of Revenue cannot be set at naught by this Court in writ jurisdiction. The decree passed in suit No. 213/151 of 1994 by the revenue Court is beyond the pale of challenge and certainly cannot be nega tived by this Court in writ jurisdiction. 9. There is another aspect of the mat ter. The petitioner has no lacus-standi to challenge the assertion of respondent No. 1, Mohd, Ayub, that he had the title to the property, which has been acquired by the State. 9. There is another aspect of the mat ter. The petitioner has no lacus-standi to challenge the assertion of respondent No. 1, Mohd, Ayub, that he had the title to the property, which has been acquired by the State. The main edifices on which the petitioner has grounded his case, i. e. he was adopted son of late Madan Lal Ahuja and that the latter executed a Will in his favour stands shattered and negatived as a result of the findings in Testamentary Suit No. 1 of 1991 recorded by this Court It is true that the petitioner has preferred a Special Appeal No. 207-of 1998, but the fact remains that as on date the petitioner has no case. Therefore, the submission that the decision of this Court be deferred till the disposal of Special Appeal No. 207 of 1998 cannot be accepted for one simple reason that even if the petitioner is suc cessful in the special appeal the right of the respondent No. 1, which have accrued in his favour pursuant to the declaratory decree passed in revenue suit No. 213/151 of 1994 remains unaffected. The respon dent No. 1 has been declared to be Bhumidhar in possession of the land measuring 4. 175 Hectares in Khata No. 88 village Shahaa to Pipalgaon, Tehsil Chail, district Allahabad and consequently-his name has been directed to be mutated in the revenue records after scrapping the name of the present petitioner, who was successful in acquiring the mutation in his name on the strength of the Will as well as on the strength of his assertion that he was the adopted son of deceased landholder. 10. In the conspectus of the above facts, I feel that this Court cannot upset the concluded findings recorded by the revenue Court. As a matter of fact, there is no compelling grounds to do so. The present petition turns out to be devoid of any merit and substance and is accordingly dismissed. 11. All the interim orders passed in this petition shall stand discharged. 12. No order as to costs. Petition dismissed. .