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2019 DIGILAW 1318 (ALL)

Ajeet v. State of U. P.

2019-05-14

SARAL SRIVASTAVA

body2019
JUDGMENT : Saral Srivastava, J. 1. Supplementary affidavit filed today is taken on record. Heard learned Counsel for the parties. 2. According to the petitioners, a house over plot No. 463&d situated in villager Raghunathpur, Pargana Jalalabad, Tehsil Modinagar, District Ghaziabad is constructed by the ancestral of the petitioners and the possession of the petitioners over the house is since long. There is another plot No. 463&[k contiguous to plot No. 463&d and the boundaries of the aforesaid two plots have not been demarcated. 3. A proceeding under section 67(1) of UP Revenue Code was initiated on the report of Lekhpal that the construction of the house of the petitioners exists over plot No. 463&[k which is recorded as Usar land in the revenue record. The said case was registered as case No. T201711281602884 (Gram Sabha v. Ajeet and others). 4. It appears from the order of Tehsildar that the petitioners have filed objection to the said notice 24.4.2017. Thereafter, Tehsildar (Judicial)/Assistant Collector, Modinagar, District Ghaziabad by order dated 28.9.2017 held that the house of the petitioners exists over plot No. 463&[k and consequently, he passed the order of eviction. 5. Against the order dated 28.9.2017; the petitioners preferred statutory appeal numbered as Appeal No. D2017112804056 (Ajeet and others v. LMC and others) before the Additional District Magistrate (Administration), Ghaziabad, which was dismissed on 7.6.2018. 6. Since the order dated 7.6.2018 was ex parte, therefore, the petitioners filed an application under Order IX Rule 4 CPC for recalling the order of Appellate Authority dated 7.6.2018. The recall application of the petitioner was also rejected by the Additional Collector (Administration), Ghaziabad by order dated 16.7.2018. All the aforesaid three orders are impugned in the present writ petition. 7. Learned Counsel for the petitioners contends that it is evident from the statement of Lekhpal that boundaries of plots No. 463&d & 463&[k have not been demarcated and without demarcation of the boundaries, the finding of Tehsildar that the construction of the petitioners exists over plot No. 463&[k is not sustainable. 7. Learned Counsel for the petitioners contends that it is evident from the statement of Lekhpal that boundaries of plots No. 463&d & 463&[k have not been demarcated and without demarcation of the boundaries, the finding of Tehsildar that the construction of the petitioners exists over plot No. 463&[k is not sustainable. He further contends that the Appellate Authority has also erred in dismissing the appeal inasmuch as the petitioners could not be present on the date fixed in the appeal and consequently, the Appellate-Authority instead of deciding the appeal on merits should have dismissed the appeal in default and further the order passed by the Additional Collector dated 16.7.2018 dismissing the recall application is also illegal and not sustainable. 8. Learned Standing Counsel very fairly submits that it appears from the order of Additional District Magistrate that the boundaries of the plots have not been demarcated and in this view of the fact, no useful purpose would be served in keeping the writ petition pending. 9. The boundaries of the plots No. 463&d & 463&[k are not defined and the plots being contiguous have not been partitioned. In view of the said fact, the Tehsildar (Judicial) has committed manifest error of law in holding that the petitioners' construction is existing over plot No. 463&[k . In this view of the matter, the order dated 28.9.2017 of the Tehsildar (Judicial) is not sustainable and consequently, the order dated 7.6.2018 dismissing the appeal and order dated 16.7.2018 dismissing the recall application is also not sustainable. 10. In view of the aforesaid fact, orders dated 28.9.2017, 7.6.2018 & 16.7.2018 passed by the Tehsildar (Judicial), Modinagar, District Ghaziabad, Additional Collector (Administration), Ghaziabad and the Additional Collector (Administration), Ghaziabad respectively are set aside. The matter is remanded back to the Tehsildar (Judicial), Modinagar, District Ghaziabad to decide afresh after demarcating boundaries of the plots No. 463&d & 463&[k within a period of three months from the date of production of certified copy of this order. 11. The writ petition is allowed.