FURKAN ALI Vs. HASHIM ALI

JUDGEMENT

(1.) Sahiuddin and Jumme Khan are cousins having a common grandfather who owned land and, upon the death of the grandfather, the land devolved upon the father of Sahiuddin and Jumme Khan. Two suits under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to Act) was filed for declaration that the Plaintiffs be declared bhumidhar over the land in question on the basis of their possession. One Suit No. 13 of 1980 was filed by Jumme Khan praying that he should be declared bhumidhar over 0.15 acres in Khasra Nos. 460 and 0.59 acres in Khasra No. 463. In this suit, Sahiuddin was not impleaded as a party. Similarly, Suit No. 14 of 1980 was filed by Sahiuddin praying that he should be declared bhumidhar of 0.75 acres in Khasra No. 460 on the basis of his possession. No. objection was filed by the State in the aforesaid two suits and, accordingly, both the suits were decreed by a separate judgment on 30th September, 1981, pursuant to which, their names were recorded as bhumidhar in the revenue record.

(2.) After 12 years, Jumme Khan filed an application under Order IX, Rule 13 of the Code of Civil Procedure for the recall of the ex parte order dated 30th September, 1981. This application was filed in Suit No. 14 of 1980 on the ground that an ex parte decree was passed and that he is the necessary party since he also holds a portion of the land in Khasra No. 460. This application was rejected by an order dated 11th June, 1993, against which, Jumme Khan filed an appeal under Section 33 (3) of the Act which was allowed by an order dated 28th June, 2000. The Appellate Court set aside the order dated 11th June, 1993 and the decreed dated 30th September, 1981 and directed Sahiuddin to implead Junune Khan as a necessary party. Sahiuddin, being aggrieved, filed a second appeal under Section 331 (4) of the Act. During the pendency of the second appeal, Sahiuddin died in the year 2002 and Jumme Khan in the year 2004. The heirs of Sahiuddin and Jumme Khan were impleaded by an order dated 20th March, 2009.

(3.) When the appeal came up for hearing, it was found that the second appeal was not maintainable under Section 331 (4) of the Act and, accordingly, a prayer was made to convert the second appeal into a revision under Section 333 of the Act. The prayer of the Appellant was not opposed and, consequently, the Court directed the Appellant to convert the appeal into a revision. The revision was thereafter heard and the same was allowed by an order dated 20th October, 2010 and the appellate order dated 28th June, 2000 was set aside. The heirs of Jumme Khan, being aggrieved by the said order, has filed the present writ petition.