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2015 DIGILAW 3625 (ALL)

Targhiv Ahmad @ Mohammad Talha v. Board of Revenue Allahabad

2015-11-20

ANJANI KUMAR MISHRA

body2015
JUDGMENT Heard Sri R.C. Singh, learned counsel for the petitioner and Sri S.C. Verma, learned counsel for the caveator, respondent no. 4, the sole contesting respondent in the writ petition. 2. The instant writ petition arises out of a suit under Section 229-B filed by the respondents regarding plot no. 13 and 14 of Mouja Mulla Tola, Post Office Sadar, Pargana Haveli, Tehsil Sadar, District Jaunpur and seeks quashing of an order dated 16.10.2015 passed by the Board of Revenue in Revision No. 28/2012-13. 3. The suit was filed by the contesting respondent on the allegation that the plots in question were the Zamindari land of the ancestors of the plaintiff. The defendant was wrongly and fraudulently recorded over the land in question and, therefore, suit. This suit was decreed ex-parte by the trial court vide judgment and decree dated 16.09.2009. 4. The case of the petitioners was that they were necessary parties to the suit. They had no knowledge of the suit. It was only when the respondents forcibly tried to occupy the land in question that they came to know about the ex-parte decree. The petitioners, therefore, filed an appeal no. 1 of 2009-2010, TargivAttan Vs Zayada Hasan and others. They also filed an application under Order 9 Rule 13 C.P.C. for setting aside ex-parte decree. 5. Subsequently, on an application of the petitioners, the appeal no. 1 of 2009-10 was ordered to be deposited with the rider that it may be revived on an application of the appellants themselves. This order was passed on 29.03.2010. 6. The application of the petitioners for setting aside ex-parte decree was rejected by the Sub-Divisional Officer by his order dated 18.08.2010. Against this order the petitioners preferred revision no. 246 of 2010. However, they got it dismissed as not pressed vide order dated 16.05.2013. 7. In the meantime, the petitioners preferred another revision being revision no. 218 of 2012 against the ex-parte decree. This revision was allowed vide order dated 28.09.2012 and the ex-parte decree was set aside and the matter was remanded back to the trial court for a fresh decision. 8. The contesting respondents filed an application for recall of the order dated 28.09.2012, which was rejected on 13.02.2013. The respondents, thereafter, filed revision no. 28 of 2012-13. This revision has been allowed by the order impugned in the writ petition. 9. The revision no. 8. The contesting respondents filed an application for recall of the order dated 28.09.2012, which was rejected on 13.02.2013. The respondents, thereafter, filed revision no. 28 of 2012-13. This revision has been allowed by the order impugned in the writ petition. 9. The revision no. 28 was filed against the order dated 28.09.2012, whereby revision no. 218 of 2012 filed by the petitioners was allowed. 10. Revision no. 37 of 2012-13 was filed challenging the order dated 13.02.2013, whereby the application for recall of the order dated 28.09.2012 was dismissed. The revision no. 28 of 2012-13, has been allowed by the impugned order and it has further been observed that the order will also govern revision no. 37 of 2012-13. Hence this writ petition. 11. The contention of learned counsel for the petitioners is that by the impugned order, the petitioners have been rendered remediless and the matter stands decide against them finally, without them having been afforded any opportunity of hearing from the merits of the suit. 12. Sri S.C. Verma, learned counsel for the caveator has submitted that the petitioners have been resorting to sharp practices. They have not been fair in so far as litigation is concerned. In any case the entries in their favour were a result of fraud and forgery. This fraud was corrected by the judgment and decree of the trial court wherein despite notice, the petitioners never appeared to contest the suit. He further submits that the petitioners has not been rendered remediless. They have availed and exhausted the remedies available to them, namely the remedy of filing an application for setting aside ex-parte decree under Order 9 Rule 13 C.P.C. as also the remedy of an appeal. In both these remedies orders have been already passed against the petitioners and, therefore, the writ petition calls for no interference. 13. I have considered the submissions made by learned counsel for parties and have perused the record, which reveals that initially the petitioners filed an appeal against the ex-parte decree. They simultaneously filed an application for setting the aside ex-parte decree before the trial court. This application under Order 9 Rule 13 C.P.C. was rejected by the trial court. Against the order dismissing the recall application under Order 9 Rule 13 C.P.C., they preferred revision no. 246 of 2010, but subsequently got the same dismissed as not pressed. They also filed revision no. This application under Order 9 Rule 13 C.P.C. was rejected by the trial court. Against the order dismissing the recall application under Order 9 Rule 13 C.P.C., they preferred revision no. 246 of 2010, but subsequently got the same dismissed as not pressed. They also filed revision no. 218 of 2012 challenging the ex-parte decree. Although, initially this revision was allowed yet the consequential revision filed by the respondents before the Board of Revenue has been allowed by the impugned order. It is therefore clear that the petitioners have availed both the remedies open to them. 14. They filed an application under Order 9 Rule 13 C.P.C. and on its dismissal preferred revision, which they did not press and, therefore, the question of the decree being set aside on the ground of being ex-parte is closed once they withdrew their revision no. 246 of 2010. 15. In so far as challenge to the ex-parte decree, on its merits is concerned, the petitioners did filed an appeal but later on got is consigned to the record to be revived at an later stage. They, thereafter, preferred a revision no. 218 of 2012, challenging the ex-parte decree, which was allowed and the matter was remanded. It is this order, which has been set aside by the Board of Revenue. 16. Perusal of the order dated 28.09.2012 passed in revision no. 218 of 2012 reveals that it was allowed on the ground that the judgment and decree was ex-parte. 17. In my considered opinion, this order dated 28.09.2012 could not have been passed since the revision no. 246 directed against the order dismissing the application under Order 9 Rule 13 had been got dismissed as not pressed. The impugned order in so far as it is sets aside the order dated 28.09.2012, which in turn set aside the decree as being ex-parte, could not have been passed in view of the dismissal as not pressed of Revision No. 246 of 2010 filed by the petitioners. 18. It is further clear that the petitioners have been resorting to sharp practices and have been filing appeals and revisions concealing material facts before various forums. 19. Moreover, the impugned order has been passed on the ground that the Revision No. 218 of 2012 filed by petitioners was not maintainable since they had already preferred an appeal against the judgment and decree of the trial Court. 20. 19. Moreover, the impugned order has been passed on the ground that the Revision No. 218 of 2012 filed by petitioners was not maintainable since they had already preferred an appeal against the judgment and decree of the trial Court. 20. The order impugned passed by the Board of Revenue is in consonance with the provisions contained in Section 333 of the U.P. Zamindari Abolition & Land Reforms Act and, therefore, calls for no interference. The writ petition lacks force and is therefore, dismissed.