GAURASH AHUJA Vs. MOHD AYUB

JUDGEMENT

(1.) O. P. Garg, J. By means of this writ petition under Article 226 of the Constitu tion of India the petitioner, who was defen dant No. 3 in revenue suit No. 213/151 of 1994 under Sections 229 B, 209 and 164 of U. P. Z. A. and L. R. Act instituted by Mohd. Ayub, respondent No. 1, has challenged ex-parte decree in the suit aforesaid passed on 9-9-1994, order of dismissal dated 2-8-1995 passed in first appeal No. 130 of 1995 and order dated 29-12-1995 passed by the Board of Revenue dismissing the second appeal No. 30/1994- 95 as well as order dated 11-3-1996 rejecting the review ap plication No. 30/1995-96, which are respectively Annexures - 5,7,9 and 10 to the petition. It is prayed that the aforesaid orders be quashed.

(2.) COUNTER rejoinder and supplemen tary affidavits have been exchanged.

(3.) IN the wake of the above facts, now let us examine the actual controversy raised in the present petition. Mohd. Ayub, respondent No. 1, filed a revenue suit No. 213/151 of 1994 for the relief of declaration of his title over the disputed land on the ground that late Madan Lal Ahuja, the recorded landholder, trans ferred possession of the land in question in his favour to secure the payment of Rs. 50,000/- by way of loan. IN the said suit, besides the State of U. P. and the Gaon Sabha, Gauresh Ahuja and Smt. Pushpa Sachdeva were impleaded as defendants No. 3 and 4. Smt. Pushpa Sachdeva filed a written statement. The trial Court Le. Ad ditional Sub-Divisional Officer, Chail found that inspite of sufficient service Gauresh Ahuja, defendant no. 3 (present petitioner) had not filed written state ment. The case proceeded ex-parte against him. The relief of. declaration as, claimed by Mohd. Ayub, respondent No. 1 was granted on 9-9-1994. The present petitioner challenged the ex-parte decree by taking recourse to two separate proceedings. He filed an application under Order IX Rule 13 C. P. C. before the trial Court and simultaneously also preferred a first appeal before the Additional Com missioner. It was registered as first appeal No. 130 of 1995. While the application under Order IX Rule 13 remained pending the first appeal filed by the petitioner was dismissed on 2-8-1995. Against the said order the petitioner approached Board of Revenue by filing second appeal No. 30/1994- 95. This second appeal was dis missed on 29-12-1995. An observation was made by the learned Member, Board of Revenue that the appeal was not main tainable as the appellant (present petitioner) had already moved an applica tion under Order IX Rule 13 C. P. C. , which was pending. The petitioner preferred a review application (No. 30/1995-96) taking the plea that the application under Order IX Rule 13 C. P. C. became infructuous as he had adopted the course of pursuing the appeal and second appeal. This review application was dismissed by the Board of Revenue by order dated 11-3-1996. It is in these circumstances the petitioner has come before this Court by filing the present writ petition to challenge the various orders aforesaid passed in the suit, first appeal, second appeal and the review application.