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2024 DIGILAW 298 (ALL)

Pashupati v. Board of Revenue U. P.

2024-01-29

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Kushal Kishore Mani and Mr. Ashwani Kumar Pathak, learned counsel for the petitioners, Mr. Gajendra Pratap, learned Senior Counsel, assisted by Mr. Maneesh Kumar, learned counsel for respondent No. 3 and Sri. Raj Kumar Singh, learned Standing Counsel for the State-respondents. 2. The brief facts of the case are that dispute relates to Khasra No. 10/1 area 0.113 hectare, Khasra No. 11Mi area 0.070 hectare, Khasra No. 17/1 area 0.214 hectare, Khasra No. 18/1 area 0.223 hectare and Khasra No. 19/1 area 0.146 hectare situated in village Neuri @ Bighi, Pargana, Tehsil and District Ballia. The land in dispute was purchased by the petitioners from one Bhagat Miya vide registered sale deed dated 22.12.1952 and the name of the petitioners were accordingly, recorded in the mutation proceedings. Land in dispute was brought under notified area of Nagar Palika Ballia by notification issued by the State Government. A suit under Section 229 B of Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950, hereinafter referred as "U.P.Z.A. & L.R. Act" has been filed by Shiv Poojan (Grandfather of respondent no. 3) in the year 1984, which was registered as Case No. 88 of 1987 (Shiv Poojan v. Pashupati and others). Petitioners were impleaded as defendants in the aforementioned case and the petitioners have filed their written statement denying the plaint allegations. Respondent no.2/Sub- Divisional Officer, vide order dated 24.8.1994 dismissed the aforementioned suit on the basis of compromise alleged to have been taken place in the aforementioned suit. On 01.12.2005, a Restoration Application along with prayer for condonation of delay was filed on behalf of respondent no. 3 against the order dated 24.8.1994 on the ground that no compromise have taken place in the aforementioned suit. Respondent no. 2 heard the aforementioned Restoration Application as well as the Delay Condonation Application and vide order dated 26.7.2016 allowed the Restoration Application condoning the delay in filing the Restoration Application as well as set aside the orders dated 24.8.1994 passed on the basis of the compromise and restored the suit under Section 229 B of U.P.Z.A. & L.R. Act on its original number for fresh decision on merit. Petitioners challenged the order dated 26.7.2016 passed by respondent no. Petitioners challenged the order dated 26.7.2016 passed by respondent no. 2/Sub Divisional Officer, through Revision No. 1565 of 2016 before the Board of Revenue and the Board of Revenue, vide order dated 18.12.2016, allowed the revision setting aside the order dated 26.7.2016 passed on the Restoration Application dated 1.12.2005. Against the order dated 18.12.2016, a review application was filed on behalf of respondent no. 3 before the Board of Revenue, which was allowed vide order dated 8.10.2021 setting aside the order dated 18.12.2016. In pursuance of the order dated 8.10.2021, the matter was proceeded before the trial court/Sub Divisional Officer and the petitioners filed an application under Order 7, Rule 11 of Civil Procedure Code on 11.07.2022 for dismissing the suit as land in dispute was abadi. On the basis of the application dated 11.7.2022 filed by the petitioners under Order 7, Rule 11 of the Civil Procedure Code, a report was called by respondent no. 2 from the Nayab Tehsildar accordingly, a report was submitted in the pending suit. Respondent no. 2 Sub-Divisional Officer vide order dated 24.6.2023 rejected the application dated 11.7.2022 filed by the petitioners under Order 7, Rule 11 of the Civil Procedure Code. Petitioners challenged the order dated 24.6.2023 by way of revision before the respondent no. 1/Board of Revenue U.P. at Allahabad, which was dismissed vide order dated 9.10.2023. Hence this petition on behalf of petitioners challenging the orders dated 24.6.2023 passed by respondent No. 2 and 9.10.2023 passed by respondent no. 1. 3. Counsel for the petitioners submitted that respondent no. 2 has illegally dismissed the application filed by petitioners under Order 7, Rule 11 of the Civil Procedure Code without examining the report submitted in the proceeding. He further submitted that the petitioners have constructed picture hall in the plot in question and the plot in dispute is abadi as such revenue court has no jurisdiction to entertain the suit. He further submitted that the issue relating to the jurisdiction is a vital issue, as such, petitioners filed an application under Order 7, Rule 11 of the Civil Procedure Code, but the same has been rejected without considering the allegation made by the petitioners in their application in accordance with law. He further submitted that the issue relating to the jurisdiction is a vital issue, as such, petitioners filed an application under Order 7, Rule 11 of the Civil Procedure Code, but the same has been rejected without considering the allegation made by the petitioners in their application in accordance with law. He further submitted that the revenue court has no jurisdiction to decide the suit in respect of abadi land as such impugned orders are wholly illegal and liable to be set aside. 4. On the other hand, Mr. Gajendra Pratap, learned Senior Counsel, assisted by Mr. Manish Kumar, submitted that suit for declaration filed in the year 1984 is still pending for final adjudication before the trial court. He further submitted that the application under Order 7, Rule 11 of Civil Procedure Code has been decided in proper manner, considering the plaint allegations as such, no interference is required in the matter. He further submitted that issue has already framed in the suit and issue no. 17 relates to the nature of plot in dispute as such, entire issue will be decided by the trial court in accordance with law. He further submitted that the case is at the evidence stage but the petitioners are abusing the process of law by filing misconceived application in the pending suit. He further submitted that writ petition filed by the petitioners is misconceived and is liable to be dismissed. 5. I have considered the arguments advanced by the learned the counsel for the parties and perused the record. 6. There is no dispute about the fact that suit under Section 229 B of U.P.Z.A. & L.R. Act filed by grandfather of the contesting respondent no. 3 in 1984 is still pending before respondent no.2. There is also no dispute about the fact that issues have been framed in the suit and evidence is going on. There is also no dispute about the fact that an application under Order 7, Rule 11 of the Civil Procedure Code filed on behalf of petitioners in pending suit has been rejected and revision has also been dismissed under impugned order. 7. In order to appreciate the controversy involved in the matter, Order 7, Rule 11 of the Civil Procedure Code will be relevant for perusal which is quoted as under:- "11. 7. In order to appreciate the controversy involved in the matter, Order 7, Rule 11 of the Civil Procedure Code will be relevant for perusal which is quoted as under:- "11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; 1[(e) where it is not filed in duplicate;] 2[(f) where the plaintiff fails to comply with the provisions of rule 9:] 3[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]" 8. The application under Order 7, Rule 11 of Civil Procedure Code has been filed on behalf of petitioners on the ground that the land in dispute is abaadi, as such revenue court has no jurisdiction. The issue has already been framed in the pending suit and same is at the evidence stage. One of the issues framed in the suit is relating to the nature of the plot in dispute as such, the trial court shall decide the entire controversy including jurisdiction of the Court after conclusion of evidence by the parties. A perusal of the impugned order demonstrates that the application under Order 7, Rule 11 of the Code of Civil Procedure has been rightly rejected after considering the plaint allegations. 9. A perusal of the impugned order demonstrates that the application under Order 7, Rule 11 of the Code of Civil Procedure has been rightly rejected after considering the plaint allegations. 9. This Court in the case of Nehru Junior High School Taryasujan v. State of U.P. and 4 others reported in 2023 (160) RD 384 has held that while deciding the application under Order VII Rule 11 of the Civil Procedure Code, the plaint allegations are relevant consideration for deciding the application. The relevant paragraph No. 20 of the judgment is as follows:- "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. & 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 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 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." 10. Considering the entire facts and circumstances of the case, no interference is required in the matter against the impugned judgment. 11. Accordingly, this writ petition is dismissed. 12. However, respondent No. 2 Sub Divisional Officer is directed to conclude the proceeding of pending Suit No. 552 of 1993-1994 (Mohanji v. Pashupati) (Computer Vad No. T202115090308464), under Section 229B of the U.P.Z.A. & L.R. Act, 1950 in accordance with law, expeditiously and preferably, within a period of four months from the date of production of certified copy of this order after affording proper opportunity of hearing to the parties.