SURESH CHANDRA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By means of present writ petition, petitioners have sought the following reliefs:-

(2.) Brief facts of the case are that the property in dispute, i.e., Plot No. 213, measuring 0.85 hectare, situated in Damuwadhunga Bandobasti, Tehsil Haldwani, District Nainital, originally belonged to Smt. Haruli Devi. On 12/4/1962, Smt. Haruli Devi executed a gift deed in favour of Late Shambu Dutt Tiwari, the father of the petitioners. The property was thereafter recorded in the Khatauni in the name of the petitioners' father on 12/1/1993, after deletion of the name of Smt. Haruli Devi. The name of the petitioners' father continued to be recorded in the Khatauni from Fasli year 1402 to 1407 as Bhoomidhar. Subsequently, one Shri Hari Dutt filed Revenue Suit No. 22/448 of 2004-05 before the Assistant Collector, 1st Class, Bhawar, Haldwani, Nainital, under Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, against the father of the petitioners. He claimed that the father of the petitioners was the Bhoomidhar of the land in dispute but that he (Hari Dutt) had acquired ownership rights over the same by virtue of adverse possession. Accordingly, he sought a declaration of bhoomidhari rights over the disputed property. The said suit was decided ex parte on 12/1/2007 against the petitioners' father, declaring Hari Dutt as the Bhoomidhar-owner of the disputed property. Thereafter, the father of the petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure before the Assistant Collector, 1st Class, Bhawar, Haldwani, Nainital, for recall of the aforesaid judgment and order. After hearing both parties, the restoration/recall application was allowed on 15/2/2008, and the case was restored. The father of the petitioners was granted time to file a written statement, which he subsequently did. Thereafter, the father of the respondent filed Revision No. 58 of 2007-08 before the Commissioner, Kumaon Mandal, Nainital. The Commissioner allowed the said revision vide order dtd. 11/6/2008 and remanded the matter to the trial court for decision after hearing both parties. Aggrieved, the father of the petitioners filed Revision No. 9 of 2008 before the Additional Chief Revenue Commissioner. The said revision was decided on 29/6/2012, and the matter was again remanded to the trial court with directions to decide the application under Order 9 Rule 13 CPC after hearing both parties on merits. The trial court, after hearing both sides, allowed the application and recalled the orders dtd. 19/11/2007 and 12/1/2007, as well as the decree dtd. 16/1/2007, vide its judgment and order dtd. 23/11/2017. During this period, the father of the petitioners, the husband of respondent no. 3, and the father of respondent nos. 4 and 5, passed away. Thereafter, Smt. Saraswati Devi (wife of late Hari Dutt) and his sons, Shri Pramod Chandra and Shri Umesh Chandra, filed Revision No. 18 (2017-18)/45 (2017-18) against the petitioners (sons of late Shambu Dutt) challenging the order dtd. 23/11/2017 before the Additional Commissioner, Kumaon Mandal, Nainital. The learned Additional Commissioner, vide order dtd. 10/5/2018, set aside the order dtd. 23/11/2017 and remanded the matter to the trial court with a direction to rehear the case on the restoration/recall application. Feeling aggrieved, the petitioners have approached this Court.

(3.) It is contended by learned Senior Advocate appearing for the petitioner that that the impugned order dtd. 10/5/2018 passed by the learned Additional Commissioner, Kumaon Mandal, Nainital, is wholly illegal, arbitrary, and contrary to the settled principles of law, inasmuch as the trial court had already decided the restoration application on merits after hearing both the parties, and therefore there was no justification for remanding the matter once again for rehearing on the same issue. He further contends that the learned Additional Commissioner failed to appreciate that the order of recall dtd. 23/11/2017 did not finally decide the rights of the parties, but merely restored the suit to its original number to be decided on merits. Therefore, interference at this interlocutory stage was wholly unwarranted.