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2022 DIGILAW 564 (ALL)

Pashupati v. Board Of Revenue

2022-04-13

PRAKASH PADIA

body2022
JUDGMENT : 1. The present writ petition has been filed by the petitioner challenging the order dated 8.10.2021 passed by the Board of Revenue, U.P. Lucknow in Case No. REW/345/2021 Ballia. 2. By the aforesaid order dated 8.10.2021, the Board of Revenue has allowed the review application filed by the respondent no. 3 and has set aside the order dated 18.12.2018 passed by the Member, Board of Revenue. A further direction has been issued to the Up-Ziladhikari, Ballia to decide the case within 3 months after giving proper opportunity of evidence and hearing to the parties concerned. 3. The facts as stated in the writ petition are that the grandfather of respondent no. 3, namely Shiv Pujan has instituted a suit under section 229B of U.P.Z.A.& L.R. Act 1950 against Pashupati, in the Court of Pargana Adhikari, Ballia. The aforesaid suit was initially decreed ex-parte and ultimately, the Board of Revenue, by an order dated 1.9.1986 remanded the matter back to the Pargana Adhikari, Ballia with a direction to decide the said suit afresh. 4. It is further stated in the writ petition that after the suit was restored to its original number and the notices were issued to the parties, however, in absence of the plaintiff/Shiv Pujan the suit was dismissed for want of prosecution on 25.8.1987. 5. On the restoration application filed by Shiv Pujan, the said order dated 25.8.1987 was recalled by an order dated 16.11.1987. It is further stated that after recall of the order dismissing the suit for want of prosecution, the case was fixed for argument on 18.1.1989. In paragraph 7 of the writ petition it is stated that Late Shiv Pujan on his own will and without any duress and coercion, entered into a compromise on 24.8.1990 and has relinquished his claim. The grandfather of respondent no. 3, namely Shiv Pujan was identified by his counsel Mr. Girdhar Gopal and in the terms of compromise, the suit was dismissed. 6. The grandson of Late Shiv Pujan, namely Mohan Ji (respondent no. 3) filed a restoration application along-with delay condonation application in the aforesaid suit on the ground that the compromise was a fraudulent act and when the respondent no. 3 came to know he filed a restoration application which was numbered as Case No. 9 of 2005. 7. 6. The grandson of Late Shiv Pujan, namely Mohan Ji (respondent no. 3) filed a restoration application along-with delay condonation application in the aforesaid suit on the ground that the compromise was a fraudulent act and when the respondent no. 3 came to know he filed a restoration application which was numbered as Case No. 9 of 2005. 7. Up-Ziladhikari, Ballia by an order dated 26.7.2016 allowed the delay condonation application and restoration application and set aside the ex-parte judgment and decree dated 24.8.1994 and restored the suit to its original number. 8. Being aggrieved with the aforesaid order dated 26.7.2016, the petitioner preferred a revision under section 333 of U.P.Z.A. & L.R. Act before the Member, Board of Revenue. The aforesaid revision filed by the petitioner was allowed, by an order dated 18.12.2018 passed by the Member Board of Revenue. By the aforesaid order, the order dated 26.7.2016 passed in restoration application dated 1.12.2005 was set aside. 9. The respondent no. 3 filed a review application against the aforesaid order dated 18.12.2018, which was numbered as Review/345/2021/Ballia. The review application was placed before the Division Bench of Board of Revenue being Review Bench-1 at Lucknow. The Division Bench of Board of Revenue, by an order dated 8.10.2021 has allowed the review application and has set aside the order dated 18.12.2018 passed by Member, Board of Revenue and has issued further direction to the Up-Ziladhikari, Ballia to decide the case within 3 months after giving opportunity of evidence and hearing to the parties concerned. 10. Heard Shri R.C. Singh, learned Senior Counsel assisted by Shri Krishna Mohan Singh, learned counsel for the petitioners and Shri Gajendra Pratap, learned Senior Counsel assisted by Shri Ashutosh Srivastava, learned counsel for respondent no.3. 11. That though no averments were made in the entire writ petition, learned counsel for the petitioner has vehemently argued that the order dated 8.10.2021 passed by the Board of Revenue is wholly illegal and beyond the scope of review. It is further argued that before passing any order in the review application, the Board of Revenue should have issue notice to the petitioner that the review application is worthy to be considered. For this proposition, the learned counsel for the petitioner has relied upon a judgment reported in AIR 1979 Allahabad 274. 12. On the other hand, the learned counsel for the respondent no. For this proposition, the learned counsel for the petitioner has relied upon a judgment reported in AIR 1979 Allahabad 274. 12. On the other hand, the learned counsel for the respondent no. 3 filed relevant case law along-with certified copy of the orders dated 22.05.2019 and 31.8.2021. Vide order dated 22.05.2019 last opportunity was granted to the other side in the review petition i.e., petitioner to file his objection on the review petition. Order dated 22.05.2019 reads as follows:- ^^i=koyh is'k gksA mHk;i{k gkftjA vkifRr ds fy, vafre volj lquokbZ gsrq fnukad 10-07-19 fu;rA rc rd tks i{k tgka dkfct gS, dkfct jgsaxsA^^ 13. The Board of Revenue has accepted the review application for hearing and vide order dated 31.08.2021 fixed 10.9.2021 for final hearing of the review application. The aforesaid order dated 31.8.2021 was passed after hearing the counsel for the petitioner and considering the objection raised by the counsel for the petitioner to the effect that the caption of review application should be Mohan Ji Vs. Pashupati & others, whereas the caption of the review application Pashupati Vs. Mohan Ji & others. The order dated 31.08.2021 reads as follows:- ^^mHk;i{k ds fonoku vf/koDrkvks dks lquk ,oa vo{ksfir vkns'k dk voyksdu fd;kA izfroknh ds fo}ku vf/koDrk loZizFke ;g vkifRr mBk;h x;h fd fjO;q izkFkZuk i= eksgu th us ;ksftr fd;k gSA blfy, vkns'k i=d ij eksgu th cuke i'kqifr vkfn vafdr gksuk pkfg, tcfd i'kqifr cuke eksgu th vkfn vafdr gSA vr % mDr =qfV dks nq#Lr fd;s tkus dk vkns'k ikfjr fd;k tk;A mijksDr rF;ksa ds vkyksd es fuca/kd dks funsZf'kr fd;k tkrk gS fd rnuqlkj dEI;wVjhd`r izca/ku iz.kkyh esa la'kks/ku djsA fjO;w izkFkZuki= lquokbZ gsrq fopkjkFkZ Lohdkj fd;k tkrk gSA fjO;w izkFkZuk i= ds vfUre fuLrkj.k rd vUrfje vkns'k fnukad 22-05-2019 cढ+k;k tkrk gS rFkk iz'u.kr izdj.k esa ftyk eftLVªsV cfy;k n~okjk ikfjr iz'kklfud vkns'k fnukad 21-08-2021 fof/k dwy u gksus ds dkj.k mldk fdz;kU;;u LFkfxr fd;k tkrk gSA okn vfUre lquokbZ gsrq fnukad 10-09-2021 dks izLrqr fd;k tk;A^^ 14. Thus, it is clear that before passing any order, accepting the review application for consideration the notice was issued to the petitioner and after considering the objection of the petitioner, the review application was accepted for hearing and thereafter the date for hearing of the review application was fixed. 15. Thus, it is clear that before passing any order, accepting the review application for consideration the notice was issued to the petitioner and after considering the objection of the petitioner, the review application was accepted for hearing and thereafter the date for hearing of the review application was fixed. 15. In view of above, the judgment cited by the counsel for the petitioner will not help to the petitioner in any manner whatsoever. 16. Apart from the aforesaid orders, the counsel for the respondent no. 3 has also filed the certified copy of the application dated 29.3.2022 filed by the petitioner no. 1 before Up-Ziladhikari, Ballia, stating therein that the respondent no. 3 Mohan Ji has moved an application before the Up-Ziladhikari, Ballia to the effect that the order of Board of Revenue dated 8.10.2021 is not being complied with and the issues have not been framed in the suit so far. Mentioning the aforesaid fact, Pashupati, the petitioner no. 1 has prayed the Up-Ziladhikari, Ballia to fix the case on day-to-day basis for early disposal of the case. 17. On the basis of the aforesaid argument the counsel for the respondent no. 3 argued that once the petitioner has accepted the order dated 8.10.2021 and has started participating in the trial of the suit in pursuance of the order dated 8.10.2021, the present writ petition is not maintainable. 18. It is further argued by the learned counsel for the respondent no. 3 that the order passed by the Board of Revenue dated 8.10.2021 is just and lawful order and in case the order dated 8.10.2021 is interfered with it will amount revival of illegal order, i.e., the order of Board of Revenue dated 18.12.2018. For this proposition, the learned counsel for the respondent no. 3 has relied upon a judgment reported in 2007 AIR (SCW) 2376; Raj Kumar Sami & another Vs. State of U.P. & others as well as AIR 2006 SC 2767 ; Employees State Insurance Corporation & Ors. Vs. Jardine Henderson Staff Society & others. 19. Heard learned counsel for the parties and has perused the record. 20. The petitioner, in pursuance of the order dated 8.10.2021 has participated in the trial of suit and he himself moved an application for day-to-day hearing, so that the case is decided expeditiously. Vs. Jardine Henderson Staff Society & others. 19. Heard learned counsel for the parties and has perused the record. 20. The petitioner, in pursuance of the order dated 8.10.2021 has participated in the trial of suit and he himself moved an application for day-to-day hearing, so that the case is decided expeditiously. This application was moved on 29.3.2022 and this fact has not been brought to the notice of the Court by the petitioner, when the matter was taken up. 21. From perusal of the record it appears that there had been no adjudication of rights of Late Shiv Pujan by any authority. By order dated 26.7.2016, the Up-Ziladhikari, Ballia has allowed the application under section 5 of the Limitation Act and has restored the case to its original number. The Board of Revenue by order dated 8.10.2021 has allowed the review application and has set aside the order dated 18.12.2018. Thus, the matter has been remanded back to the Up-Ziladhikari, Ballia for fresh decision on merits after providing opportunity of evidence to the parties concerned. The said order has been complied with by the petitioner since he himself has moved application for early disposal of the case. 22. Once the petitioner himself has started participating in the proceedings without any protest and without any condition of his appearance the present writ petition is not maintainable. Moreover, the Board of Revenue has issued notice to the petitioner on presentation of the review application and thereafter after hearing the parties, the review application was accepted for consideration and then the order dated 8.10.2021 has been passed varying/set aside the order dated 18.12.2018 passed by the learned Member of Board of Revenue. 23. I do not find any illegality in the order. Accordingly, the writ petition is devoid of merit and is hereby dismissed.