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2017 DIGILAW 442 (ALL)

Ravindra Nath Dubey v. Collector Gorakhpur

2017-02-07

SUNITA AGARWAL

body2017
JUDGMENT Sunita Agarwal, J. Heard learned counsel for the petitioner and learned Standing Counsel. Sri Tariq Maqbool Khan, learned Advocate has put in appearance on behalf of respondent Nos.4, 5 & 6. By means of the present writ petition, the petitioner is challenging the order dated 18.5.2016 passed by the Collector, Gorakhpur in accepting the transfer application moved by the respondents for transferring the Declaratory Suit No.57 of 2010 filed by the respondents with the pending restoration application filed by the respondents in Partition Suit No.65 of 2009. 2. From the record, it transpires that with regard to the disputed property, partition suit under Section 176 of U.P. Z.A. & L.R. Act has been filed by the petitioner impleading other co-sharers of the disputed property in which a preliminary decree dated 21.12.2009 was passed. Terming it as an ex-parte decree, the respondent Nos.7 to 12 have moved recall application. Simultaneously, they have also filed a Declaratory Suit which was registered as Case No.57 of 2010. 3. It appears that the Declaratory Suit was earlier decreed on 6.12.2010, however, the said decree was recalled on the application moved by the petitioner and now both the proceedings are pending in the Court of Sub-Divisional Magistrate, Basgaon, Gorakhpur. 4. It appears that an application was moved by the respondent Nos.7 to 12 before the Collector, Gorakhpur with the prayer to consolidate both the proceedings as parties and the disputed property in both the proceedings are one and the same. The said application was allowed vide order dated 18.5.2016 after the contest made by the petitioner. The Collector, Gorakhpur while allowing the said application has recorded that in order to avoid any contradictions, both the cases shall be heard and decided together. 5. This order is under challenge in the present writ petition on the ground that the Collector, Gorakhpur cannot be said to be a higher Court than that of the Sub-Divisional Magistrate in the proceeding under Sections 176 & 229-B of the U.P. Z.A. & L.R. Act. The transfer order or the order of consolidation of two suits could have been passed on a proper application moved before the Commissioner. 6. The crux of the submission of learned counsel for the petitioner is that an order impugned is without any jurisdiction. 7. However, there is no dispute about the fact that both the proceedings are pending before the Sub-Divisional Magistrate, Basgaon, Gorakhpur. 6. The crux of the submission of learned counsel for the petitioner is that an order impugned is without any jurisdiction. 7. However, there is no dispute about the fact that both the proceedings are pending before the Sub-Divisional Magistrate, Basgaon, Gorakhpur. There is also no dispute about the fact that the disputed property and the parties in both the proceedings are same. The petitioner and respondent Nos.7 to 12 are real brothers and they appear to be the rival claimants with respect to the disputed property. The claim of the petitioner is that he along with respondent Nos.7 to 12 is the co-sharer of the disputed property whereas respondent Nos.7 to 12 are claiming their exclusive right over the suit property. 8. Looking to the fact that the dispute pertains to the same property between the petitioner and respondent Nos.7 to 12 in both the proceedings, this Court does not find any force in the contention of learned counsel for the petitioner that both the proceedings could not have been consolidated. 9. Section 192-A of U.P. Land Revenue Act, 1901 clearly provides that where more cases than one involving substantially the same question for determination are pending in one Court or more than one Court, they be consolidated and be heard together on an application moved by any of the parties. 10. In view of the above noted facts, this Court is not inclined to interfere in the direction given by the Collector, Gorakhpur to consolidate both the proceedings and decide them together on the ground of jurisdiction. 11. However, in order to bring the controversy to its logical end, the present writ petition is disposed of with the directions as follows: - (1) The Sub-Divisional Officer, Basgaon, Gorakhpur shall proceed expeditiously and make an endeavour to decide both the proceedings preferably within a period of six months from the date of submission of certified copy of this order after providing due opportunity of hearing to all concerned. (2) It is made clear that no unnecessary adjournment would be granted to either of the parties and, in case, of any such adjournment, the appropriate cost shall be imposed by the Court concerned upon the party who seeks adjournment.