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2024 DIGILAW 67 (ALL)

Mohammad Gufran v. State Of U. P.

2024-01-05

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Rejoinder affidavit filed on behalf of the petitioners is taken on record. 2. Heard Mr. K.K. Tiwari, learned counsel for the petitioner, Mr. Munna Tiwari, learned counsel for respondent nos. 5 to 11, Mr. Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents and Mr. Arun Kumar Pandey for respondent no.3, Gaon Sabha. 3. Brief facts of the case are that petitioner's father filed a suit for partition under Section 176 of U.P.Z.A. and L.R. Act in respect to the plot nos. 245, 284 situated in Village Khauja Kheda and plot nos. 6, 13, 47, 153, 154, 39 situated in Village Karkheda, Tehsil Tanda, District Rampur. The Trial Court passed the preliminary decree on 21.6.2008 giving one third share to plaintiff-petitioner, defendant no.1 and defendant no.2. Against the preliminary decree dated 21.6.2008, an application under Order 9 Rule 13 C.P.C. has been filed at the instance of the private respondents which was registered as miscellaneous case No. 41/ 07-08/ 08 09. The aforementioned restoration application was heard and disposed of vide order dated 14.9.2009 setting aside the order passed for preliminary decree dated 21.6.2008 and restored the partition suit on its original number for decision afresh. Against the order allowing the application under Order 9 Rule 13 C.P.C., petitioners filed an appeal before the Commissioner which was registered as Appeal No. 84/ 2008-2009 under Section 331 of the U.P.Z.A. and L.R. Act. The appeal was heard by Additional Commissioner, Moradabad Division Moradabad and the same was allowed by judgment dated 19.2.2010 setting aside the order dated 14.9.2009 and affirming the order dated 21.6.2008. Against the order dated 19.2.2010, private respondents filed a revision before the Board of Revenue which was registered as revision No. 85 of 2009-2010 under Section 333 of U.P.Z.A. and L.R. Act. The aforementioned revision was heard ex-parte and the same was allowed setting aside the order of Appellate Court dated 19.2.2010 and maintaining the order of Trial Court dated 14.9.2009. The aforementioned revision was heard ex-parte and the same was allowed setting aside the order of Appellate Court dated 19.2.2010 and maintaining the order of Trial Court dated 14.9.2009. Petitioners filed a restoration application against the order of the Board of Revenue dated 21.2.2023 which has been dismissed vide order dated 5.6.2023 hence this writ petition on behalf of the petitioners for the following relief:- " Issue a writ, order or direction in the nature of certiorari quashing the order dated 21.2.2023 passed by respondent no.2 i.e. Member (Judicial), Board of Revenue, U.P. At Allahabad/ Prayagraj in case No. REV/85 of 2009-2010, (CNR No. AL2010135999500), Mohammad Islam Vs. Mohammad Usman, as well as order dated 5.6.2023 passed by respondent no.2, i.e. Member (Judicial), Board of Revenue, U.P. At Allahabad/ Prayagraj, contained as Annexure Nos. 8 and 9 to the writ petition respectively." 4. This Court has entertained the petition, passed an order dated 4.7.2023 issuing notice to the private respondent nos. 5 to 11 and parties were directed that no third party interest shall be created in respect to the property in question. 5. In pursuance of the order of this Court dated 4.7.2023, respondent nos. 5 to 11 have put in appearance and have filed their counter-affidavit. Petitioners have filed their rejoinder-affidavit also. 6. Counsel for the petitioners submitted that in partition suit, preliminary decree was rightly passed by the Trial Court giving one third share to plaintiff, defendant no.1 and defendant no.2. He further submitted that private-respondents in order to linger on the proceeding, applied under Order 9 Rule 13 of Civil Procedure Code which was been allowed and the order passed for preliminary decree has been illegally set aside. He further submitted that petitioners filed an appeal before the Commissioner which was allowed considering the family settlement set up in the proceeding as well as the other evidence on the record. He further submitted that the Additional Commissioner has allowed the appeal, set aside the order passed for restoring the partition suit for passing fresh preliminary decree and directed the Trial Court to proceed on the basis of preliminary decree passed in the partition suit. He further submitted that the Additional Commissioner has allowed the appeal, set aside the order passed for restoring the partition suit for passing fresh preliminary decree and directed the Trial Court to proceed on the basis of preliminary decree passed in the partition suit. He further submitted that in the revisional exercise of jurisdiction, the Board of Revenue has exceeded the jurisdiction and in arbitrary manner passed the orders setting aside the appeallate order and maintaining order allowing the application under Order 9 Rule 13 C.P.C. on the ground that order allowing the application under Order 9 Rule 13 C.P.C. is interlocutory order. He submitted that restoration application filed on behalf of the petitioners has been rejected on technical grounds, as such, the impugned orders be set aside and revision be heard afresh in accordance with law. 7. Mr. Munna Tiwari, learned counsel appearing for private respondent nos. 5 to 11 submitted that application under Order 9 Rule 13 C.P.C. was rightly allowed and the suit has been restored to its original number, as such, the appeal filed under Section 331of the U.P.Z.A and L.R. Act has been illegally allowed by the Additional Commissioner. He further submitted that petitioners have full opportunity to contest the partition suit on merit in pursuance of impugned order. He further submitted that revision has been rightly allowed and the restoration application filed by the petitioners has been rightly rejected. He submitted that in pursuance of the order allowing the revision vide order dated 21.2.2023, the proceeding is going on before the Trial Court, as such, no interference is required in the matter and the writ petition is liable to be dismissed. He further submitted that family settlement set up by petitioners is fraudulant, as such, the same is not admissible in evidence. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that in suit for partition filed at the instance of the petitioners' father, a preliminary decree was passed for one third share each to the plaintiff and defendants. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that in suit for partition filed at the instance of the petitioners' father, a preliminary decree was passed for one third share each to the plaintiff and defendants. There is also no dispute about the fact that application under Order 9 Rule 13 C.P.C. filed at the instance of the private respondents has been allowed but in appeal, the order allowing the application under Order 9 Rule 13 C.P.C. has been set aside and the earlier order for preliminary decree was maintained. There is also no dispute about the fact that a revision filed by the private respondents has been allowed in ex-parte manner and the restoration application filed on behalf of the petitioners has been rejected. 10. In order to appreciate the controversy involved in the matter, the perusal of the relevant portion of the impugned order dated 5.6.2023 rejecting the restoration application filed by the petitioners will be relevant which is as under:- 11. The perusal of the order dated 5.6.2023 reveals that restoration application filed against the order allowing the revision ex-parte has been rejected on technical ground which cannot be sustained in the eye of law. It is also material that restoration application has been filed against the order which was admittedly passed in ex-parte manner. 12. The perusal of the relevant portion of the ex-parte revisional order dated 21.2.2023 will also be necessary which is as under:- 13. Considering the ex-parte order passed by the Board of Revenue dated 21.2.2023 as well as the order rejecting the petitioners' restoration application on the technical grounds the impugned orders dated 21.2.2023 and 5.6.2023 cannot be sustained and the same are hereby set aside. Writ petition stands allowed. The matter is remitted back before respondent no.2, Board of Revenue U.P. at Allahabad/ Prayagraj to register the revision No. 85 of 2009-10, Computerized case No. AL2010135999500 on its original number and decide the same afresh after affording opportunity of hearing to both the parties in accordance with law expeditiously preferably within period of three months.