PASHUPATI Vs. BOARD OF REVENUE U. P.

JUDGEMENT

(1.) Heard Mr. Kaushal Kishore Mani and Mr. Ashwani Kumar Pathak, learned counsel for the petitioners, Mr. Gajendra Pratap, learned Senior Counsel, assisted by Mr. Maneesh Kumar, learned counsel for respondent No. 3 and Sri Raj Kumar Singh, learned Standing Counsel for the State-respondents.

(2.) The brief facts of the case are that dispute relates to Khasra No. 10/1 area 0.113 hectare, Khasra No. 11Mi area 0.070 hectare, Khasra No. 17/1 area 0.214 hectare, Khasra No. 18/1 area 0.223 hectare and Khasra No. 19/1 area 0.146 hectare situated in village Neuri @ Bighi, Pargana, Tehsil and District Ballia. The land in dispute was purchased by the petitioners from one Bhagat Miya vide registered sale deed dtd. 22/12/1952 and the name of the petitioners were accordingly, recorded in the mutation proceedings. Land in dispute was brought under notified area of Nagar Palika Ballia by notification issued by the State Government. A suit under Sec. 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred as "U.P.Z.A. and L.R. Act" has been filed by Shiv Poojan (Grandfather of respondent No. 3) in the year 1984, which was registered as Case No. 88 of 1987 (Shiv Poojan v. Pashupati and others). Petitioners were impleaded as defendants in the aforementioned case and the petitioners have filed their written statement denying the plaint allegations. Respondent No. 2/Sub-Divisional Officer, vide order dtd. 24/8/1994 dismissed the aforementioned suit on the basis of compromise alleged to have been taken place in the aforementioned suit. On 1/12/2005, a Restoration Application along with prayer for condonation of delay was filed on behalf of respondent No. 3 against the order dtd. 24/8/1994 on the ground that no compromise have taken place in the aforementioned suit. Respondent No. 2 heard the aforementioned Restoration Application as well as the Delay Condonation Application and vide order dtd. 26/7/2016 allowed the Restoration Application condoning the delay in filing the Restoration Application as well as set aside the orders dtd. 24/8/1994 passed on the basis of the compromise and restored the suit under Sec. 229-B of U.P.Z.A. and L.R. Act on its original number for fresh decision on merit. Petitioners challenged the order dtd. 26/7/2016 passed by respondent No. 2/Sub-Divisional Officer, through Revision No. 1565 of 2016 before the Board of Revenue and the Board of Revenue, vide order dtd. 18/12/2016, allowed the revision setting aside the order dtd. 26/7/2016 passed on the Restoration Application dtd. 1/12/2005. Against the order dtd. 18/12/2016, a review application was filed on behalf of respondent No. 3 before the Board of Revenue, which was allowed vide order dtd. 8/10/2021 setting aside the order dtd. 18/12/2016. In pursuance of the order dtd. 8/10/2021, the matter was proceeded before the trial court/Sub-Divisional Officer and the petitioners filed an application under Order VII, Rule 11 of Civil Procedure Code on 11/7/2022 for dismissing the suit as land in dispute was abadi. On the basis of the application dtd. 11/7/2022 filed by the petitioners under Order VII, Rule 11 of the Civil Procedure Code, a report was called by respondent No. 2 from the Nayab Tehsildar accordingly, a report was submitted in the pending suit. Respondent No. 2 Sub-Divisional Officer vide order dtd. 24/6/2023 rejected the application dtd. 11/7/2022 filed by the petitioners under Order VII, Rule 11 of the Civil Procedure Code. Petitioners challenged the order dtd. 24/6/2023 by way of revision before the respondent No. 1/Board of Revenue U.P. at Allahabad, which was dismissed vide order dtd. 9/10/2023. Hence this petition on behalf of petitioners challenging the orders dtd. 24/6/2023 passed by respondent No. 2 and 9/10/2023 passed by respondent No. 1.

(3.) Counsel for the petitioners submitted that respondent No. 2 has illegally dismissed the application filed by petitioners under Order VII, Rule 11 of the Civil Procedure Code without examining the report submitted in the proceeding. He further submitted that the petitioners have constructed picture hall in the plot in question and the plot in dispute is abadi as such revenue court has no jurisdiction to entertain the suit. He further submitted that the issue relating to the jurisdiction is a vital issue, as such, petitioners filed an application under Order VII, Rule 11 of the Civil Procedure Code, but the same has been rejected without considering the allegation made by the petitioners in their application in accordance with law. He further submitted that the revenue court has no jurisdiction to decide the suit in respect of abadi land as such impugned orders are wholly illegal and liable to be set aside.