HARI NARAIN SHUKLA Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) HEARD Shri G.M. Kamil, learned counsel for the petitioner and Shri A.N. Khare learned counsel for Mata Prasad the only contesting respondent in both the writ petitions. First writ petition is directed against the judgment and order dated 19.01.2006 passed by the Additional Commissioner (Judicial) Devi Patan Mandal, Gonda in Revision No. 1115 Hari Narayan Shukla Vs. Mata Prasad. The revision was directed against the order dated 20.08.2002 passed by the S.D.O/ Deputy D.M. Bahraich in suit no. 87 under section 229 B of U.P. Zamindari Abolition and Land Reforms Act Hari Narayan Shukla Vs. Ramanand. The said suit had been decreed on the basis of compromise on 17.05.2002. Defendant respondent Mata Prasad ( who was not party in the suit) filed restoration application on 24.07.2002 which was allowed on 20.08.2002 by the S.D.O. and exparte decree dated 17.05.2002 was set aside. The Additional Commissioner maintained the restoration order and dismissed the Revision.

(2.) THE second writ petition is directed against the order dated 31.08.2006 passed by the Commissioner Devi Patan Mandal, Gonda, in revision no. 6 which was directed against the order of S.D.O. Dated 15.07.2006 passed in the same suit i.e. suit no. 87. The said revision was filed by Mata Prasad respondent no. 3. Through the order dated 15.07.2006 application of the Mata Prasad for impleadment had been rejected. The revision was allowed by the Additional Commissioner on the ground that earlier restoration application filed by Mata Prasad had already been allowed on 20.08.2002 hence application for impleadement was formal in nature and should have been allowed. Plots in dispute are 977 and 986 M. The case of the petitioner was that the defendant nos. 1 and 2 of the suit i.e. Ramanand and Ram Sumiran who were real brothers and original tenure holders of the said plot had sold the property in dispute in his favour on 12.08.1985 for Rs. 25,000/ - after receiving the said amount and the receipt was also issued to that effect. It was also stated that the plaintiff did not have money to meet the expenses of execution of the sale deed hence only receipt was got issued. Petitioner had also asserted that on 12.08.1985 after receiving Rs. 25,000/ - possession was given to him by defendant no. 1 and 2. Plaintiff's application for mutation had been rejected hence he filed the suit for declaration. Defendants nos. 1 and 2 filed written statement contending that they had not sold the property and the receipt dated 12.08.1985 was forged. The suit was initially decreed on 17.05.2002 on the basis of compromise dated 02.08.2001. During the pendency of the suit defendant no. 1 Ramanand had died on 01.10.2001 and only defendant no. 2 was his legal representative.

(3.) MOREOVER by virtue of proviso added in 1976 -77 to Order 23 Rule 3 C.P.C. if it is alleged that the compromise on the basis of which suit was decreed was not entered into, then the said question has to be decided by the Court which passed the order on the basis of compromise. Accordingly, I do not find any error in the impugned orders. Both the writ petitions are dismissed. However, it is directed that in the suit in question validity and genuineness of will shall be decided. It is further directed that as Ram Sumiran did not object to the compromise decree hence even if the case of Mata Prasad is accepted, petitioner's right over half of the land decreed through compromise judgment dated 20.08.2002 shall not be set aside as Ram Sumiran is not questioning that.