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2024 DIGILAW 149 (ALL)

Ashish Rai v. State Of U. P.

2024-01-11

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. A.P. Singh, learned counsel for the petitioner, Sri Amit Kumar Asthana, learned counsel for the contesting respondent no.5, Sri R.C. Srivastava, learned Addl. C.S.C. for the state-respondents and Sri Rameshwar Prasad Shukla, learned counsel for the respondent-gaon sabha. 2. Brief facts of the case are that predecessor of contesting respondents filed a suit for partition under Section 176 of the U.P. Z.A. & L.R. Act in respect to plots of khata no.204, 205, 206, situated in village- Sohauli, impleading petitioner along with others as defendant. Contesting respondents filed a transfer application before the Collector to transfer the aforementioned partition suit. During pendency of transfer application, defendant no.1- Harihar expired on 26.9.2010, accordingly, petitioner filed an application under Order XXII Rule 10A of CIVIL PROCEDURE CODE before the Collector stating about the death of deceased and plaintiff also filed a substitution application. The Collector passed an order on 28.2.2011, allowing the substitution application although transfer application has been rejected. In partition suit before the S.D.O., an application dated 1.6.2011 was filed for abatement at the instance of the petitioner, stating that defendant no.1- Harihar has expired but no steps for substitution has been taken by the plaintiff. On behalf of the plaintiffs (Jay Prakash and Shri Prakash), an application has been filed stating that necessary application for substitution has already been filed on 15.12.2010 but the same is not available on record, as such, substitution of defendant no.1- Harihar be allowed and abatement, if any, be set aside. On behalf of the petitioner, an objection was filed to the application dated 15.6.2011. Respondent no.3/S.D.O. vide order dated 4.6.2014, rejected the application dated 1.6.2011 filed on behalf of the petitioner and directed the plaintiff to initiate substitution proceeding by the next date fixed in the matter. Plaintiffs (Jay Prakash and Shri Prakash) moved an application, stating that in the earlier application dated 15.6.2011 filed by them, the name of legal heirs of deceased defendant no.1- Harihar could not be mentioned, as such, the instant application be read as part of the earlier application dated 15.6.2011 and substitute the legal heirs of deceased defendant no.1- Harihar. Respondent no.3/S.D.O. vide order dated 9.6.2014 allowed the substitution application of defendant no.1-Harihar. Respondent no.3/S.D.O. vide order dated 9.6.2014 allowed the substitution application of defendant no.1-Harihar. Against the order dated 9.6.2014, petitioner's father filed a revision under Section 333 of the U.P. Z.A. & L.R. Act before the Commissioner which was rejected vide order dated 13.3.2019. Petitioner's father challenged the order of Commissioner and the S.D.O. before this Court through Writ C No.25819/2019 which was allowed by this Court vide order dated 26.9.2019, setting aside the orders dated 9.6.2014 & 19.3.2019. In pursuance of the order of this Court dated 26.9.2019, predecessor of contesting respondent filed an application dated 6.11.2019 before respondent no.3/S.D.O., disclosing the name of proposed heir of deceased defendant no.1- Harihar in continuation of the order dated 4.6.2014. The S.D.O. vide order dated 28.7.2021 allowed the amendment application dated 9.6.2014 as well as the substitution application dated 6.11.2019. Against the order dated 28.7.2021, the petitioner's father filed revision before the Board of Revenue which was heard by the Board of Revenue and vide order dated 16.3.2023, allowed the revision in part, setting aside the part of the order dated 28.7.2021 by which the application dated 9.6.2014 was allowed but rest of the order dated 28.7.2021 was maintained and the matter has been remanded back before the S.D.O. to decide the suit afresh on merit. Hence, this petition. 3. Counsel for the petitioner submitted that in a suit for partition, proper application for substitution has not been filed, as such, the order impugned cannot be passed by the court concerned. He also submitted that procedure prescribed under Order 22 Rules 3 & 4 is to be followed in proper manner otherwise the suit cannot proceed. He also submitted that earlier the matter came up before this Court and this Court has decided the matter vide judgement dated 26.09.2019 as such court should proceed in proper manner. 4. On the other hand, Mr. Amit Kumar Asthana, learned counsel for the respondent no.5 submitted that the instant writ petition arises out of proceeding for partition and the impugned order allowing the substitution application has been passed in the interest of justice. They further submitted that the suit for partition cannot be abated as in a partition suit, all the parties stand on the same footing. They further placed reliance on a decision of the Apex Court reported in 2022 AIR (SC) 1304, Azgar Barid (D) by LRS. They further submitted that the suit for partition cannot be abated as in a partition suit, all the parties stand on the same footing. They further placed reliance on a decision of the Apex Court reported in 2022 AIR (SC) 1304, Azgar Barid (D) by LRS. and Others vs. Mazambi @ Pyaremabi and Others , in support of their argument. 5. I have considered the arguments advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that a suit for partition under Section 176 of the U.P. Z.A. & L.R. Act filed by the contesting respondent is pending before the trial court since 2003 and the substitution application along with delay condonation matter in respect to defendent No.1 has been disposed of under the impugned orders. 7. In order to appreciate the controversy, involved in the present petition, perusal of the the impugned order will be relevant which is quoted hereunder:- 8. The Hon'ble Apex Court in the case of Azgar Barid (supra) has considered the controversy relating to partition suit which will be also relevant for perusal, which is quoted hereunder:- "11. Per contra, Shri Ananthamurthy submitted that the trial court had rightly appreciated the evidence. However, the First Appellate Court had reversed the same on the basis of conjectures and surmises. The High Court has therefore rightly interfered with the same while reversing the judgment of the First Appellate Court. He further submitted that in a partition suit, all the parties stand on a same pedestal and every party is a plaintiff as well as a defendant. 12. We will first deal with the objection of the appellant that since plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal. This Court in the cases of Bhagwan Swaroop and Others v. Mool Chand and Others, 1983 2 SCC 132 and Dr. P. Nalla Thampy Thera v. B.L. Shanker and Others, 1984 Suppl. SCC 631 has held that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties. P. Nalla Thampy Thera v. B.L. Shanker and Others, 1984 Suppl. SCC 631 has held that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties. It has been further held that so long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant." 9.Calcutta High Court has also considered the controversy relating to substitution/abatement/impleadment in the case of Anjum Ara and Others Vs. Mohd. Salahuddin and Others reported in (2017) 174 AIC 437. The relevant paragraph no.10 of the judgment of Anjum Ara and Others (supra) is as under:- "10. It is well settled that the normal rule relating to abatement in a suit does not apply to the suit for partition and/or suit for administration. In a suit for partition, everybody is plaintiff; no matter how a party is arrayed in the cause title of the plaint. As such, nobody will be benefited if the suit is abated. The cause of action for filing a suit for partition is recurring one. As such, even abatement of a suit for partition cannot debar him to file a fresh suit on the subsequent date on the basis of the cause of action which will arise on the date of institution of the subsequent suit. As such, this Hon'ble Court in the following decisions has held that even after a suit for partition abates on the death of one of the parties, still then the court can very well regularise the said defect by even impleading the heirs of such deceased party either as plaintiff or as defendant in the suit by exercising its suo motu jurisdiction under Order 1 Rule 10(2) of the CIVIL PROCEDURE CODE :? (i) In the case of Mahendra Nath Sarkar v. Haradhan Mondal reported in 1999 WBLR (Cal.) 353, (ii) In the case of Pasupati Ghosh v. Mrityunjoy Ghosh reported in 2008 (2) CLJ (Cal.) 204 and (iii) In the case of Provat Chandra Coomar v. Rabindra Nath Coomar reported in AIR 1960 Cal.291." 10. (i) In the case of Mahendra Nath Sarkar v. Haradhan Mondal reported in 1999 WBLR (Cal.) 353, (ii) In the case of Pasupati Ghosh v. Mrityunjoy Ghosh reported in 2008 (2) CLJ (Cal.) 204 and (iii) In the case of Provat Chandra Coomar v. Rabindra Nath Coomar reported in AIR 1960 Cal.291." 10. In instant matter under the impugned orders the substitution application dated 6.11.2019 along with the prayer for condonation filed by the plaintiffs in respect to deceased defendant No.1 in a suit for partition under section- 176 of U.P Z.A & L.R Act has been allowed which requires no interference by this court in view of the ratio of law laid down in Anjum Ara & other (supra). 11. The writ petition is dismissed. 12. However, respondent no.3 is directed to conclude the pending proceeding of the partition suit which is pending for the last 20 year at the very initial stage, after affording opportunity of hearing to the parties, as expeditiously as possible, preferably within a period of 6 months from the date of production of certified copy of this order before him.