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2014 DIGILAW 1353 (ALL)

Mitthu Lal v. Board of Revenue.

2014-04-25

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri A. K. Pandey for the petitioner and Sri H. K. Mishra for the contesting respondents. 2. The writ petition has been filed against the orders of Sub Divisional Officer dated 5.02.1990, Additional Commissioner dated 24.10.1990 and Board of Revenue dated 15.10.1993 by which a suit filed by the petitioner under Section 229 B read with Section 122 B (4F) of UP Act No. 1 of 1951 (hereinafter referred to as the Act) has been dismissed. 3. The dispute relates to between the parties in respect of plot no. 69 and 70 of village Salem Bhadari, tehsil Lalganj, district Pratapgarh. Earlier Abid Ali and others (respondents-5 to 8) filed a suit under Section 299B, read with Section 122 B (4F) of the Act for declaring them as bhumidhar of the land in dispute on the basis of their possession over it. The suit was decreed by the judgment 29.1.1986 as Pradhan admitted possession of the respondents. On coming to know about the aforesaid judgment, the petitioner filed an application for setting aside the exparte decree. Gaon Sabha also filed an application for setting aside the exparte decree. Both the applications were consolidated and decided by Sub Divisional Officer, who by order dated 15.02.1989 held that as the petitioner was not party in the suit as such his application filed for setting aside the decree was not maintainable and in respect of Goan Sabha it has been held that the application was time barred as such it is not maintainable. Both the applications were dismissed. Thereafter the petitioner filed the present suit, in which the contesting respondents appeared and raised an objection that they had already been declared bhumidhar of the land in dispute and the recall application filed by the petitioner had already been rejected as such fresh suit on behalf of the petitioner is not maintainable. Sub-Divisional Officer, by judgment dated 5.02.1990, dismissed the suit on the ground that the matter in this respect has already been decided by the judgment dated 29.01.1996 and the application filed by the petitioner for setting aside the aforesaid decree has also been rejected. The appeal filed by the petitioner has been dismissed by Additional Commissioner by order dated 24.10.1990 and the second appeal filed by the petitioner has also been dismissed by Board of Revenue by order dated 15.10.1993. Hence this writ petition has been filed. The appeal filed by the petitioner has been dismissed by Additional Commissioner by order dated 24.10.1990 and the second appeal filed by the petitioner has also been dismissed by Board of Revenue by order dated 15.10.1993. Hence this writ petition has been filed. 4. The counsel for the petitioner submits that the petitioner was not party in Suit No. 312 of 1986 as such the decree passed in it, is not binding of the petitioner nor will operate as res-judicata against him. The recall application of the petitioner has been rejected on this ground that as he was not party in the suit as such recall application was not maintainable. In view of this findings, the suit filed by the petitioner, was maintainable. But the Sub Divisional Officer has illegally dismissed the suit only on the ground of maintainability. 5. I have considered the arguments of the counsels for the parties and examined the records. A perusal of the orders of three Revenue Courts shows that the suit of the petitioner has been dismissed on the ground of maintainability. The courts below found that as Suit No. 312 of 1986 has already been decided by Sub Divisional Officer in respect of the same land as such the other suit filed by the petitioner was not maintainable. 6. Relevancy of the judgements are provided under Section 40 to 43 of the Evidence Act. Section 42 of the Evidence Act, 1872 provides that judgment, order or decree other than those mentioned in Section 41 are relevant, if they relates to matter of public nature, relevant to the enquiry but such judgment, order or decree are not conclusive proof of that which they states. Under Section 43 it has been mentioned that the other judgements are not relevant. As such the judgement in the suit filed by the contesting respondents in respect of the land in dispute cannot be taken as conclusive. In view of the specific provision of Section 42 of the Evidence Act and judgment was not between the parties and it does not operate as res-judicata. 7. In view of the aforesaid fact, the fresh suit filed by the petitioner was maintainable and it was required to be decided after framing issues and taking evidences of the parties. The courts below have illegally dismissed the suit of the petitioner. 8. In the result, the writ petition succeeds and is allowed. 7. In view of the aforesaid fact, the fresh suit filed by the petitioner was maintainable and it was required to be decided after framing issues and taking evidences of the parties. The courts below have illegally dismissed the suit of the petitioner. 8. In the result, the writ petition succeeds and is allowed. The orders of Sub Divisional Officer dated 5.02.1990, Additional Commissioner dated 14.10.1990 and Board of Revenue dated 15.10.1993 are set aside. The matter is remanded to Sub-Divisional Officer, Lalganj, Pratapgarh who shall decide the suit filed by the petitioner afresh in accordance with law. Since the matter is pending for a long time the Sub-Divisional Officer, Lalganj may conclude the trial and decide the suit expeditiously, preferably within a period of one year from the date of producing a certified copy of this order before him.