DAYA SHANKAR Vs. BOARD PF REVENUE

JUDGEMENT

(1.) Heard Mr. Sanjai Kumar Pandey, learned counsel for the petitioners, learned Standing Counsel for respondent Nos.1, 2, 3, 6 and 8, Mr. S.K. Tiwari for respondent No.4 and Mr. S. K. Pandey, learned counsel for respondent No.5.

(2.) Brief facts of the case are that plaintiff-respondent No.4 filed a case under Sec. 176 of the U. P .Z. A. & L. R. Act for partition of plot No. 364 area 0.683 hectare. There was defect in the suit as such, suit was dismissed with liberty to file a fresh suit vide order dtd. 27/7/2012. A fresh Suit has been filed by plaintiff-respondent No.4 on 20/11/2014 in which petitioners were plaintiff/defendants have filed their written statement and declined plaint allegations. Trial Court/Sub-Divisional Officer, Bilsi, Badaun considering the evidence on record dismissed the plaint suit vide judgment and decree dtd. 29/3/2016. Against the judgment and decree dtd. 29/3/2016, passed by trial court plaintiff-respondent No.4 filed an appeal before the Court of Commissioner and the Additional Commissioner vide judgment and decree dtd. 7/9/2017 allowed the suit, setting aside the judgment and decree of trial court dtd. 29/3/2016 and remanded the matter back before trial court with direction to decide the matter afresh after providing opportunity of hearing and leading evidence to both the parties. After remand, the trial court, registered the suit under Sec. 116 of the U.P. Revenue Code 2006 and decided the suit vide judgment and decree dtd. 10/9/2018 passing preliminary decree in the suit. Trial Court after passing the preliminary decree in disputed plot No.364 summoned the Lekhpal for filing kurra in the suit. Petitioners challenged the order of the trial court dtd. 10/9/2018 by way of Revision before the Revisional Court, which was dismissed vide judgment and order dtd. 10/8/2021 on the ground that trial court has already passed final decree on 22/3/2021 as such Revision is not maintained against the preliminary decree passed by the trial court. The Lekhpal prepared the Kurra on 5/10/2018 and the same was filed before the trial court on 28/9/2018. Trial Court further invited objection of the parties to the kurra accordingly, petitioner Nos.5 and 6 filed their objections against the kurra on 22/10/2018 and petitioner Nos. 2 and 4 filed their objection against the kurra on 18/1/2018 and by their objection, they prayed that kurra dtd. 18/9/2018 and 5/10/2018 be rejected. Lekhpal was examined before the trial court. Trial Court heard the objection filed by the petitioners to the kurra and found that kurra has been wrongly prepared and submitted as such kurra submitted by the area Lekhpal was rejected vide order dtd. 25/3/2019 and the area Lekhpal was again directed for making proper spot inspect and prepared kurra in accordance with law as provided under the Act and Rules. Plaintiff-respondent No.4 aggrieved with order dtd. 25/3/2019 filed a Revision under Sec. 210 of the U.P. Revenue Code, 2006 before the Commissioner, but there was no interim order in the Revision, as such Area Lekhpal filed a fresh kurra before the trial court on 13/3/2020. After submission of fresh Kurra dtd. 13/3/2020 Additional Commissioner Bareilly, Division Bareilly without considering the material facts allow the Revision filed by contesting respondent vide order dtd. 24/2/2021 setting aside the order dtd. 25/3/2019 and sent the matter back before the trial court and proceed further according the Kurra dtd. 28/9/2018/5/10/2018. Petitioners challenged the order dtd. 24/2/2021 passed by Additional Commissioner through Revision before respondent No.1 but no order has been passed in the Revision and trial court proceeded with the matter in pursuance of the order dtd. 24/2/2021 and passed final order/decree on 22/3/2021/31/3/2021. Petitioners challenged the order dtd. 10/9/2018/ 22/3/2021/ 31/3/2021 through Appeal before respondent No.2 under Sec. 207 of the U.P. Revenue Code, 2006, who dismissed the Appeal vide order dtd. 10/8/2021. Against the appellate court judgment dtd. 10/8/2021 as well as judgment and decree passed by the courts below Second Appeal under Sec. 208 of U.P. Revenue Code, 2006 preferred by the petitioners was also dismissed on the same ground vide order dtd. 21/2/2022. Hence this writ petition.

(3.) This Court after hearing the writ petition for admission passed the following interim order dtd. 30/5/2022: