SHYAM KISHAN DHAON Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution is directed against the order dated 4 -5 -1982 passed by S.D.O. Lucknow, Opposite Party No. 3, by which suit for declaration under Section 229 -B of U.P. ZA and LR Act, concerning plot Nos. 1252, 218 and 454 situated in village Bargawan, Pargana Bijanore, Tahsil and District Lucknow, was dismissed.

(2.) NONE appeared on behalf of opposite party No. 2 although notices was served on them. Sri. U.P. Singh Advocate has put in appearance on behalf of opposite parties Nos. 4 to 10, while learned State Counsel represents opposite parties Nos. 1 and 3. Briefly stated the facts of the case are as follows: Petitioners filed a suit for declaration under Section 229 -B of the U.P. ZA and LR Act in the Court of S.D.O. Lucknow on 7 -6 -1979 seeking declaration to the effect that they are Bhumidhar in possession of the land in suit to the exclusion of the other Defendants, namely, Tej Kishan Dhaon, Pratap Kishan Dhaon, Anand Kishan Dhaon, Rup Kishan Dhaon, Kamla Kishan Dhaon, Jai Kishan Dhaon and Vinay Kishan Dhaon, who have been arrayed as opposite parties Nos. 4 to 10 in the writ petition. A perusal of the plaint (Annexure -2) indicates that the Petitioners claimed Bhumidbari rights over the aforesaid plots on the ground that these plots, together with other land, originally belonged to Sri. H.K. Dhaon the grand -father of Petitioners Nos. 1 and 2. After his death, it devolved upon his sons, namely, opposite parties, Nos. 4 to 10 and Sri. Bijal Kishan Dhaon the deceased father of Petitioners Nos. 1 and 2. It is pleaded in the plaint that a partition suit was filed in the Civil Courts in respect of the properties of Late Sri. H.K. Dhaon including the aforesaid three plots and the said Regular Suit No. 43 of 1960 was decided on the basis of a compromise arrived at by way of family settlement and by decree dated 24 -8 -1960, passed by learned Civil Judge Mohanlalganj, the aforesaid plots and certain other property fell in the share of Sri. B.K. Dhaon the deceased father of Petitioners Nos. 1 and 2 and husband of Petitioner No. 3. Sri. B.K. Dhaon came in possession as sole Bhumidhar of the aforesaid plots. After his death Petitioners Nos. 1 and 2 their brother R.K. Dhaon succeeded as Bhumidhars and came in possession of the same. R.K. Dhaon, the third brother of Petitioners Nos. 1 and 2, is said to have died unmarried in September 1971 and his interest in the land in question devolved upon Petitioner No. 3 being his mother. It was further pleaded in the plaint that certain wrong entries in revenue records were made by the Lekhpal in collusion with the Defendants and they asserted their rights over plots Nos. 1252 and 218 on which wrong entries continued in the name of Sri. H.K. Dhaon inspite of the aforesaid decree and also wrong entry continued as Ban jar on plot no 454 also on plot No. 1252 as Parti Jadid. Hence there arose the necessity for filing the suit for declaration. This suit was filed after serving notice under Section 80 Code of Civil Procedure on State Government on 17 -10 -P77 and Nagar Mahapalika on 19 -10 -1977. The village is situated within the limits of Nagar Mahapalika Lucknow, hence Nagar Mahapalika was also impleaded as a party. No contest was put in on behalf of opposite party No. 1 and opposite parties Nos. 4 to 10 Opposite parties Nos. 5 to 8 even admitted the claim of the Petitioners by filing written statement dated 30 -6 -1980. It appears that application was moved on behalf of Nagar Mahapalika in the aforesaid suit on 22 -3 -1982 wherein it was asserted that the title in the land in dispute is to be decided by the District Judge in Civil Court concerned under Section 18 read with Section 30 (apparently wrongly quoted for Section 31) of Land Acquisition Act that plot No. 218 has been under this scheme and possession taken over. Therefore, further proceedings in the above -noted case be dropped and the suit be consigned to records. Plot Nos. 454 and 1258 of village Burgawan were acquired vide notification in 247/XXXVII -2 -15LA -76 dated 29 -4 -1980. On this application the S.D.O. passed the impugned order dated 4 -5 -1982, which read as follows:

(3.) LEARNED Counsel for the Petitioners contended that since the title suit was filed prior to the aforesaid notification regarding acquisition of land in dispute and, as such, the said suit cannot he held to have become infructuous and it was not liable to be dismissed. Learned Counsel contended that the S.D.O. legally erred in holding that since the land in suit has been acquired and, as such, the case cannot proceed. He urged that since there is no provision under the Land Acquisition Act which would make pending suits liable to be dismissed, upon acquisition of the land in dispute under Land Acquisition Act, the impugned order passed by the S.D.O. is patently erroneous and he has failed to exercise jurisdiction vested in him in law to decide the suit on merits.