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2023 DIGILAW 491 (UTT)

Dwarika Singh Bisht v. Mohan Singh

2023-08-28

RAKESH THAPLIYAL

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JUDGMENT : RAKESH THAPLIYAL, J. 1. The petitioner was the plaintiff, who filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 being Revenue Case No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan Singh and Others in the Court of Assistant Collector, Kotdwar, Pauri Garhwal on the ground that the plaintiff is in possession over the property in dispute, for more than 20 years, and he has acquired Bhumidhari rights over the property in dispute on the basis of adverse possession. The said Suit was decreed ex-parte by judgment dated 28.10.1994. Thereafter, respondent No. 1 moved an Application under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte decree dated 28.10.1994 on the ground that he is the co-tenure holder in the land in dispute and he was in service at Allahabad and when he came to the village, then after perusing the documents, he came to know that the name of plaintiff-Dwarika Singh Bisht has been recorded and he has been declared Bhumidhar. The petitioner also filed his objections again contending therein that he is in possession since 1974 over the property in dispute and the defendant never remained in possession, but just to avoid complicity, respondent No. 1 offered to the plaintiff that the defendant wants to sell the property to the plaintiff and he transferred whatever rights were there of the defendant in favour of the plaintiff on 02.08.1993 and also got an amount of Rs. 15,000/- from the plaintiff. The Order 9 Rule 13 C.P.C. Application moved by the defendant was allowed on 14.11.2003. Against the said order, a revision was preferred by the plaintiff (petitioner herein) before the Additional Collector, Garhwal Mandal bearing Revision No. 3 of 2003-04 Dwarika Singh Bisht vs. Mohan Singh and Others and the revision was dismissed by judgment and order dated 03.11.2008. Against the orders dated 14.11.2003, 15.12.2003 and the said revisional Court’s order dated 03.11.2008, the present writ petition has been preferred by the petitioner, who was the plaintiff in the suit. 2. A Co-ordinate Bench of this Court vide order dated 17.04.2010 stayed the proceedings of Revenue Case No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan Singh Bisht pending before the Assistant Collector, 1st Class, Kotdwar, District Pauri Garhwal. This interim order, passed on 17.04.2010, was vacated by a Co-ordinate Bench of this Court by order dated 07.07.2010. 2. A Co-ordinate Bench of this Court vide order dated 17.04.2010 stayed the proceedings of Revenue Case No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan Singh Bisht pending before the Assistant Collector, 1st Class, Kotdwar, District Pauri Garhwal. This interim order, passed on 17.04.2010, was vacated by a Co-ordinate Bench of this Court by order dated 07.07.2010. While vacating the order dated 17.04.2010, the Co-ordinate Bench drew the following observations in the order dated 07.07.2010: “Two weeks’ and no more time is allowed to the petitioner to file the rejoinder affidavit. After hearing the learned counsel for the parties, this Court does not find that the proceedings before the trial court should remain stayed. Consequently, the interim order dated 17th April, 2010 is vacated. The trial court would proceed with the case which will be subject to the final decision of the writ court.” 3. The interim order dated 17.04.2010 was vacated after hearing the counsel for both the parties. 4. Apart from this, undisputedly, the judgment and decree passed by the trial court in the Revenue Case No. 80 of 1993-94 was ex-parte, which was subsequently restored vide order dated 14.11.2003 and the revision filed against the said order was also dismissed on 03.11.2008. 5. This Court does not find any infirmity in restoring the suit. Even otherwise, as per the order passed by the Co-ordinate Bench of this Court dated 07.07.2010, the Coordinate Bench was of the view that there is no such material for staying the proceedings, and that was the reason that the stay order was vacated by order dated 07.07.2010. The Co-ordinate Bench, while vacating the stay order dated 17.04.2010, also directed the trial Court to proceed with the case which will be subject to the final decision of the writ Court. 6. After perusing the judgment and decree dated 28.10.1994, which was passed ex-parte, the reasons as given in the Application filed by respondent No. 1 (defendant in the suit) under Order 9 Rule 13 CPC, the order dated 14.11.2003, whereby the Application filed under Order 9 Rule 13 CPC was allowed and the suit was restored, as well as the revisional Court’s order dated 03.11.2018, whereby the revision filed against the order dated 14.11.2003 was dismissed, I do not find any infirmity or illegality in the orders impugned. 7. The writ petition is, accordingly, dismissed. 7. The writ petition is, accordingly, dismissed. The trial Court should proceed with the revenue case. 8. Counsel for the petitioner, on instructions, submits before this Court that the records of the Revenue Case No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan Singh and others, which is pending in the Court of Assistant collector, Kotdwar, Pauri Garhwal, are missing. 9. Let the Assistant Collector, Kotdwar, Pauri Garhwal furnish a status report with regard to the said proceeding within a period of two weeks, failing which the Assistant Collector, Kotdwar, Pauri Garhwal shall appear physically before this Court on 15.09.2023.