JUDGMENT Chandra Kumar Rai, J. Heard Sri R.C. Singh, learned Senior Counsel assisted by Sri R.S. Nagvanshi, learned counsel for petitioner, Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Anurag Tripathi, learned counsel for respondent no.5, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for state-respondents and Sri Sudhir Bharti, learned counsel for Gaon Sabha. 2. Brief facts of the case are that one Naipal and Raghunath sons of Dev Narayan were bhumidhar in possession of old plot nos. 43/1.93, 44/1.64, 54/.50, 55/.48, and 56/.48 New No. 514, 515, 529. The recorded tenure holders as mentioned above transferred the aforesaid plots to the Junior High School Tarya Sujan, District Deoria (now district Kushinagar) vide registered sale deed dated 09-08-1965. 3. On the basis of the aforementioned sale deed dated 09-08-1965 name of the college was accordingly recorded in the revenue records. The village in question where the aforementioned plots were situated was brought under consolidation operation by means of notification issued under Section 4 of U.P. Consolidation of Holdings Act (hereinafter referred as U.P. C.H. Act). Basic year entry according to petitioner was in the name of petitioner and no objection under Section -9A (2) of U.P. C.H. Act was filed by anybody but according to respondent no.5 her husband was recorded in the basic year of consolidation but petitioner got his name recorded fraudulently subsequent to C.H. form 23 stage without any basis.. 4. According to petitioner the name of the contesting respondent no.5 or her predecessor-in-interest was not recorded in the revenue records at any point of time over the plots in dispute. 5. Respondent no.5 filed a suit under Section 144 of the U.P. Revenue Code, 2006 for declaration in respect of the plots in dispute which was numbered as Case No. T201905440303976, stating that plots in dispute was self-acquired property of her husband (Raj Kishore) and after the death of her husband in the year 2011, she came in possession of the plots in dispute. 6. The Trial Court vide ex-parte judgment dated 26-07-2019 decreed the plaintiff's suit under Section 144 of the U.P. Revenue Code 2006. 7. Petitioner filed an application under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred as CPC) against the ex-parte judgment and decree dated 26-07-2019, which was allowed vide order dated 16-12-2019 and the suit was again restored to its original number for decision afresh. 8. 7. Petitioner filed an application under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred as CPC) against the ex-parte judgment and decree dated 26-07-2019, which was allowed vide order dated 16-12-2019 and the suit was again restored to its original number for decision afresh. 8. Against the order dated 16-12-2019, respondent no.5 filed an appeal before the Appellate Court, which was dismissed vide judgment and dated 05-04-2021. 9. Petitioner filed an application dated 01-07-2022 before the Trial Court to dismiss the suit as not maintainable as no proceeding has been taken during consolidation operation as such the suit under Section 144 of the U.P. Revenue Code, 2006 is barred by Section 49 of the U.P. C.H. Act. 10. The Sub Divisional Officer, Tamkuhiraj, Kushinagar vide order dated 26-08-2022 rejected the application filed by the petitioner. 11. Against the order dated 26-08-2022 passed by the Trial Court, petitioner filed a revision being Revision No. C202205000001466 before the Commissioner Gorakhpur Division, Gorakhpur. 12. The aforementioned revision was dismissed by Commissioner/respondent no.2 vide order dated 24-03-2023, hence, this writ petition. 13. Learned Senior Counsel appearing for petitioner submitted that application under Order VII Rule 11 of the CPC filed by petitioner in the pending suit has been rejected in an arbitrary manner. He further submitted that for deciding an application under Order VII Rule 11 of the CPC filing of the written statement and framing of the issue is not a condition precedence rather plaint allegation is relevant. He further submitted that if the suit is frivolous and is barred by provisions of law, the same can be considered at the very initial stage. He further submitted that no objection under Section 9 of the U.P. C.H. Act was filed by respondent no.5, as such the suit under Section 144 of the U.P. Revenue Code, 2006 is barred under Section 49 of the U.P. C.H. Act. He further submitted that petitioner who is an educational institution has been unnecessarily dragged into litigation, as such the application under Order VII Rule 11 of the CPC filed by petitioner should be allowed in view of the provisions contained under Order VII Rule 11 of the CPC . 14. He further submitted that petitioner who is an educational institution has been unnecessarily dragged into litigation, as such the application under Order VII Rule 11 of the CPC filed by petitioner should be allowed in view of the provisions contained under Order VII Rule 11 of the CPC . 14. Learned Senior Counsel for petitioner has placed reliance upon the judgments in Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. M/S Ponniamman Educational Trust represented by its Chairperson/Managing Trustee in Civil Appeal No. 4841 of 2012 (Arising out of SLP (c) NO. 30632 of 2011) dated 03-07-0212 ; Madanuri Sri Rama Chandra Murthy v. Syed Jalal in Civil Appeal No. 5368 of 2017 (Arising out of S.L.P. (Civil) No. 35352 dated 19-04-2017; K. Akbar Ali v. K. Umar Khan and Others, AIR 2021 SC 1114 and Charu Kishor Mehta v. Prakash Patel and Others in Special Leave Petition (C) No. 11030 of 2022 dated 22-06-2022 on the scope of Order VII Rule 11 of the CPC . 15. On the other hand Sri Anoop Trivedi, learned Senior Counsel appearing for respondent no.5 submitted that suit under Section 144 of the U.P. Revenue Code, 2006 filed by respondent no.5 is not barred under Section 49 of the U.P. C.H. Act. He further submitted that suit under Section 144 of the U.P. Revenue Code, 2006 are suit of special character, as such the same cannot be dismissed without framing issue and giving opportunity to the parties to lead evidence. He further submitted that the name of respondent no.5 was recorded in the revenue records up to the preparation of CH- Form 23, but the name of petitioner came in CH- Form 45 in the fraudulent manner. He further submitted that petitioner is claiming the rights on the basis of sale deed, however, the vendor of petitioner has died before the alleged execution of sale deed in favour of the petitioner. He submitted that petitioner is not the rightful owner of the plots in dispute as such the suit for declaration filed by respondent no.5 cannot be dismissed as not maintainable. He further submitted that the claim of the petitioner can be very well examined on merit as to whether the suit is barred under Section 49 of U.P. C.H.Act or not after framing issues in the suit. He further submitted that the claim of the petitioner can be very well examined on merit as to whether the suit is barred under Section 49 of U.P. C.H.Act or not after framing issues in the suit. He further submitted that after framing issues in the suit the matter will be decided in accordance with law including the issue relating to Section 49 of U.P. C.H.Act. He further submitted that argument advanced by the counsel for petitioner on the point of under Order VII Rule 11 of the CPC is misconceived as the allegation made in the plaint discloses the cause of action for filing the suit under Section 144 of the U.P. Revenue Code, 2006. He further submitted that no interference is required in the matter and the writ petition is liable to be dismissed. 16. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 17. There is no dispute about the fact that the suit under Section 144 of the U.P. Revenue Code, 2006 filed by respondent no.5 is pending before the Trial Court/respondent no.3.. There is also no dispute about the fact that application filed by petitioner for dismissing the suit as not maintainable being barred by Section 49 of U.P. C.H. Act has been rejected by the Trial Court and the order has been maintained in revision. 18. In order to appreciate the controversy a perusal of Section 144 of the U.P. Revenue Code, 2006 is necessary, which is as under: 144. Declaratory suits by tenure holders. - (1) Any person claiming to be a bhumidhar or asami of any holding or part thereof, whether exclusively or jointly with any other person, may sue for a declaration of his rights in such holding or part. (2) In every suit under sub-section (1) instituted by or on behalf of- (a) a bhumidhar, the State and the [Gram Panchayat] shall be necessary parties; (b) an asami, the landholder shall be a necessary party. 19. (2) In every suit under sub-section (1) instituted by or on behalf of- (a) a bhumidhar, the State and the [Gram Panchayat] shall be necessary parties; (b) an asami, the landholder shall be a necessary party. 19. On the scope of Section 144 of the U.P. Revenue Code, 2006/Section 229-B of U.P. Z.A and L.R. Act, this Court in the case of Pan Kumari v. Board of Revenue, U.P. at Allahabad and Others, reported in [2005 (99) RD 529 has held that suit under Section 229-B of U.P. Z.A. and L.R. Act are the suit of special character and even no limitation is provided for filing a declaratory suit before the Revenue Court. The paragraph no.6 of the judgment is relevant, which is as under:- "6. Sri R.C. Singh submits that the suit under Section 229-B was barred by limitation. In support of this contention he relies upon Section 341 of the U.P. Zamindari Abolition and Land Reforms Act, which provides that the Limitation Act would be applicable to proceedings under the U.P. Zamindari Abolition and Land Reforms Act and limitation in a suit for declaration would be governed by Article 137 of Schedule 1 of the Limitation Act as there is no period prescribed for such a suit under the U.P.Z.A. and L.R. Act. Section 341 itself provides that the provisions of certain Acts including the Limitation Act shall remain stayed.ply to the proceedings under the U.P. Z.A. and L. R. Act unless otherwise provided in the U.P.Z.A. and L.R. Act. Rule 338 of the U.P.Z.A. and L.R. Rules provides that the suits, applications and Ors. proceedings specified in Appendix III shall be instituted within the time specified therein for them respectively. Recourse to the provisions of the Limitation Act would be available only if there is no provision under Rules in respect of the period of limitation for the different classes of suits or proceedings mentioned therein. In Appendix III the period of limitation provided for different classes of suits has been given. As regards suits under Limitation Act column 4, which prescribes the period of limitation for different classes of suit says "none". It would therefore be treated that there is no limitation for filing a suit under Limitation Act. section 9 of the Civil Procedure Code provides that all suits of civil nature shall be instituted in the civil court except those, which have been accepted. It would therefore be treated that there is no limitation for filing a suit under Limitation Act. section 9 of the Civil Procedure Code provides that all suits of civil nature shall be instituted in the civil court except those, which have been accepted. A suit under Section 229-B falls within the excepted category and such suits even though they involve declaration are suits of a special character. Article 137 of the Limitation Act relied upon by Sri Singh in any case is applicable only to applications and not to suits and therefore has no play. When the rule making authority has provided different periods of limitation for different classes of suits it would be treated that provisions prescribing period of limitation in the Limitation Act would not be applicable to suits under the U.P.Z.A. and L.R. Act. Section 189 U.P.Z.A.& L. R. Act sets out the circumstances in which the interest of a bhumidar is extinguished. Clauses (a) (aa) and (b) relate to cases where the bhumidar dies leaving no heir, or where he has let out his holding in contravention of the provisions of the Act or where the land is acquired. Sub-section (C) of Section 189 provides that where a bhumidar has lost possession the bhumidari right would extinguish when the right to recover possession is lost. In Ram Naresh v. Board of Revenue, 1985 R.D. 444 relied upon by Sri R. C. Singh it was held that the provisions of Section 27 of the Limitation Act would be attracted to suits instituted under Section 229-B. Section 27 provides that on the determination of the period limited for instituting a suit for possession the right to such property shall be extinguished. The rule is an exception to the general rule that limitation bars the remedy but does not extinguish the right. If however a person is in possession his right can not be extinguished unless the case is covered by Clauses (a) (aa) and (b) of Section 189. He can therefore seek a declaration of his right at any point of time. If a person has been dispossessed he would have to institute a suit under Section 209 U.P.Z.A. and L.R. Act. Appendix III provides the period for limitation for filing a suit under Section 209. He can therefore seek a declaration of his right at any point of time. If a person has been dispossessed he would have to institute a suit under Section 209 U.P.Z.A. and L.R. Act. Appendix III provides the period for limitation for filing a suit under Section 209. It would follow therefore that a suit under Section 229-B would be barred by limitation the bhumidar is out of possession and his right to file a suit under Section 209 is barred by limitation. The finding of fact recorded on the question of possession is that the plaintiffs have established their continuous possession over the disputed land. The finding is not shown to be vitiated by any error. As the rights of the plaintiff were never extinguished no question of limitation arises. For the reasons given above the writ petition lacks merit and is dismissed." 20. The exercise of jurisdiction under Order VII Rule 11 C.P.C. in respect to the suit under Section 229-B of U.P. Z.A. and L.R. Act, this Court in the case reported in 2019(145) RD 411 Roshan Singh @ Bunti v. Board of Revenue and Others has held that jurisdiction under Order VII Rule 11 C.P.C. is not to be utilised as a trial before the trial. Paragraph No.6 of the judgment is relevant for perusal which is as under:- "6.This Court has perused the plaint, a copy of which is annexed as Annexure-3 to the writ petition. A perusal of paragraphs 5, 6, 7 and 8 of the plaint shows that the plaintiff has come forward seeking declaration of his rights to Khasra No.213, admeasuring 1 Bigha, 9 Biswa and 6 biswansi situate at Village Kheda, Pargana Dasna, District Hapur, (then Ghaziabad) and to hold the Will dated 06.06.1977 void. The cause of action clearly indicates that the petitioner alleges fraud played upon him by the defendants. It has been averred in paragraph-6 of the plaint that the fact that the name of the defendants had been recorded over the property in dispute, was kept back from the plaintiff until the month of May, 2006. It is claimed that the plaintiff Charan Singh, never knew it before the said date. It is claimed by the plaintiff that he is a co-sharer along with deceased, Balbeer Singh through whom the defendants claim, on the basis of a Will. It is claimed that the plaintiff Charan Singh, never knew it before the said date. It is claimed by the plaintiff that he is a co-sharer along with deceased, Balbeer Singh through whom the defendants claim, on the basis of a Will. It is also averred in paragraph-8 that the entire mutation proceedings, wherein the order dated 18.11.1998 has been passed in favour of the defendant, were all taken behind his back. These are pleadings which prima facie require to be examined on the basis of evidence, even if the cause of action is ultimately held to be barred by limitation. It is not a case where on a reading of the plaint, the cause of action is ex facie barred by limitation. The law about exercise of jurisdiction under Order VII Rule 11 CPC is settled beyond the slightest doubt. It is that, that allegations in the plaint alone are to be seen, in order to determine whether the plaint is to be rejected, on any of the grounds mentioned in Order VII Rule 11 CPC. The defence put forward by the defendant or the evidence is not at all to be considered. The jurisdiction under Order VII Rule 11 CPC is not to be utilized as a trial before the trial. 21. In the instant case paragraph nos. The defence put forward by the defendant or the evidence is not at all to be considered. The jurisdiction under Order VII Rule 11 CPC is not to be utilized as a trial before the trial. 21. In the instant case paragraph nos. 3 to 7 of the plaint of the suit under Section 144 of U.P. Revenue Code, 2006 are relevant for perusal which are as under:- ^^U;k;ky; Jheku miftykf/kdkjh egksn;] redqghjkt] tuin&dq'khuxjA okn la[;k & T201905440303976 Jherh KkUrh nsoh iRuh Lo0 jktfd'kksj fuokfluh ekStk&xM+fg;k ikBd] rIik gosyh] ijxuk fl0 tks0 rglhy & redqghjkt tuin & dq'khuxjA -------------------- ¼okfnuh½ 3& ;g fd okLrfod rF; ;g gS fd fookfnr Hkw[k;k ewy:i ls ge okfnuh ds ifr jkt fd'kksj iqus jk/kkfd'kqu dh rugk iSnkdjnxh Hkwfe gSA ftl ij os vius thoudky rd cgSfl;r rugk Hkwfe /kj dkfct nkf[ky ,oa v/;kflr Fks rFkk muds e`R;qijkar mudk rugk okfjl gksus ds ukrs okfnuh cgSfl;r okfjl iRuh ojklru dkfct nkf[ky ,oa v/;kflr pyh vk jgh gS] tks dHkh Hkh [akfMr ugha gqvkA 4& ;g fd iwoZ pdcanh fookfnr Hkw[kaM dh iqjkuh Hkw[kaM la0 43@1-93 ,dM+] 44@1-64 ,dM] 54@0-59 ,dM+] vjkth la0 56@0-48 ,dM+ o 611@0-62 ,dM+ Fkk tks nkSjku pdcanh tksr pdcanh vkdkj i= 11 o tksr pdcanh vkdkj i= 23 Hkkx (I) esa Hkw[kaM la0 43@1@1-20 ,dM+] 43@2@0-02 ,dM+] 43@3@0-01 ,dM+] 44@1@0-31 ,dM+] 44@2@0-47 ,dM+] 54@1@0-38 ,dM+] 44@3@0-33] 54@3@-08 ,dM+] 55@1@0-25 ,dM+] 55@3@0-05 ,dM+] 56@1@0-5 ,dM+] 56@3@0-25 ,dM+] o 56@4@0-02 ,dM+ cuk gSA ftldh ubZ orZeku Hkw[kaM la0 514@0-190 gs0] 515@0-942 gs0 o 529@0-174 gs0 cuk gS] ftls fookfnr Hkw[kaM dgk tk jgk gSA 5& ;g fd mDr xzke dh pdcanh dh dk;Zokgh chr tkus ds dkQh fnuksa ckn o"kZ 2011 esa ge okfnuh ds ifr jktfd'kksj dh e`R;q gks xbZ rFkk muds e`R;qijkar okfnuh fookfnr Hkw[kaM ij cgSfl;r rugk Hkwfe/kj eqrokfjr ojklru dkfct nkf[ky ,oa v/;kflr pyh vk jgh gSA 6& ;g fd fookfnr Hkw[kaM ij pdcanh iwoZ ds [krkSuh esa rFkk nkSjku pdcanh vk/kkj o"kZ dh [krkSuh] tksr pdcanh vkdkj i=&1] tksr pdcanh vkdkj i=&23 Hkkx ¼ i ½ ,oa mlds ckn ds vU; vfHkys[kksa esa okfnuh ds ifr jktfd'kksj dk uke cgSfl;r rugk Hkwfe/kj vafdr pyk vk;k rFkk vius thoudky rd dkfct nkf[ky ,oa v/;kflr jgsaA 7& ;g fd pwafd izfroknh izFke i{k dkQh pkykd ,oa eqdnesckt fdLe ds O;fDr gSa] ftUgksaus fookfnr Hkw[kaM dks gM+ius dh fu;r ls pdcanh vgydkjku dks vius lkft'k esa djds tksr pdcanh vkdkj vf/kdkjh ds vkns'k ds viuk uke vafdr djk fy;k rFkk okfnuh ds ifr jktfd'kksj dk uke vfHkys[kksa ls gVok fn;kA ftldh drbZ dksbZ fof/kd ikoanh okfnuh ij ugha gS ,oa mldh drbZ dksbZ tkudkjh ge okfnuh ds ifr jktfd'kksj o okfnuh dks ugha gks ikbZA bl izdkj fookfnr Hkw[kaM ij izfroknh izFke i{k dk uke [krkSuh esa =qfViw.kZ rjhds ls vafdr pyk vk jgk gSA** 22. The aforementioned paragraph nos. 3,4,5 and 6 of the plaint discloses the cause of action to the plaintiff to file suit for declaration of her right under Section 144 of U.P. Revenue Code, 2006 as such rejection of plaint or dismissal of suit under Section 144 of U.P. Revenue Code, 2006 at the very initial stage will be illegal. 23. So fas as the argument advanced by the learned senior counsel for petitioner that suit is barred under Section 49 of the U.P. C.H. Act is concerned, the same shall be considered during trial at a appropriate stage. The petitioner will have full opportunity to get the issue framed on the point of Section 49 of U.P. C.H. Act and to lead evidence on the issue in accordance with law. 24. The case law cited by learned senior counsel for the petitioner will not be applicable in the circumstances of the case as indicated above. 25. Considering the entire facts and circumstances as well as ratio laid down by this Court in Pan Kumari (supra) and Roshan Singh @ Bunti (supra), no interference is required against the impugned orders. The writ petition is dismissed. However, the Trial Court shall frame issue in the matter in accordance with law including the issue of Section 49 of the U.P. C.H. Act and decide the suit after giving opportunity to the parties to lead evidence in accordance with law expeditiously.