ASHISH RAI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. A.P. Singh, learned counsel for the petitioner, Sri Amit Kumar Asthana, learned counsel for the contesting respondent no.5, Sri R.C. Srivastava, learned Addl. C.S.C. for the state-respondents and Sri Rameshwar Prasad Shukla, learned counsel for the respondent-gaon sabha.

(2.) Brief facts of the case are that predecessor of contesting respondents filed a suit for partition under Sec. 176 of the U.P. Z.A. & L.R. Act in respect to plots of khata no.204, 205, 206, situated in village- Sohauli, impleading petitioner along with others as defendant. Contesting respondents filed a transfer application before the Collector to transfer the aforementioned partition suit. During pendency of transfer application, defendant no.1- Harihar expired on 26/9/2010, accordingly, petitioner filed an application under Order XXII Rule 10A of Civil Procedure Code before the Collector stating about the death of deceased and plaintiff also filed a substitution application. The Collector passed an order on 28/2/2011, allowing the substitution application although transfer application has been rejected. In partition suit before the S.D.O., an application dtd. 1/6/2011 was filed for abatement at the instance of the petitioner, stating that defendant no.1- Harihar has expired but no steps for substitution has been taken by the plaintiff. On behalf of the plaintiffs (Jay Prakash and Shri Prakash), an application has been filed stating that necessary application for substitution has already been filed on 15/12/2010 but the same is not available on record, as such, substitution of defendant no.1- Harihar be allowed and abatement, if any, be set aside. On behalf of the petitioner, an objection was filed to the application dtd. 15/6/2011. Respondent no.3/S.D.O. vide order dtd. 4/6/2014, rejected the application dtd. 1/6/2011 filed on behalf of the petitioner and directed the plaintiff to initiate substitution proceeding by the next date fixed in the matter. Plaintiffs (Jay Prakash and Shri Prakash) moved an application, stating that in the earlier application dtd. 15/6/2011 filed by them, the name of legal heirs of deceased defendant no.1- Harihar could not be mentioned, as such, the instant application be read as part of the earlier application dtd. 15/6/2011 and substitute the legal heirs of deceased defendant no.1- Harihar. Respondent no.3/S.D.O. vide order dtd. 9/6/2014 allowed the substitution application of defendant no.1-Harihar. Against the order dtd. 9/6/2014, petitioner's father filed a revision under Sec. 333 of the U.P. Z.A. & L.R. Act before the Commissioner which was rejected vide order dtd. 13/3/2019. Petitioner's father challenged the order of Commissioner and the S.D.O. before this Court through Writ C No.25819/2019 which was allowed by this Court vide order dtd. 26/9/2019, setting aside the orders dtd. 9/6/2014 and 19/3/2019. In pursuance of the order of this Court dtd. 26/9/2019, predecessor of contesting respondent filed an application dtd. 6/11/2019 before respondent no.3/S.D.O., disclosing the name of proposed heir of deceased defendant no.1- Harihar in continuation of the order dtd. 4/6/2014. The S.D.O. vide order dtd. 28/7/2021 allowed the amendment application dtd. 9/6/2014 as well as the substitution application dtd. 6/11/2019. Against the order dtd. 28/7/2021, the petitioner's father filed revision before the Board of Revenue which was heard by the Board of Revenue and vide order dtd. 16/3/2023, allowed the revision in part, setting aside the part of the order dtd. 28/7/2021 by which the application dtd. 9/6/2014 was allowed but rest of the order dtd. 28/7/2021 was maintained and the matter has been remanded back before the S.D.O. to decide the suit afresh on merit. Hence, this petition.

(3.) Counsel for the petitioner submitted that in a suit for partition, proper application for substitution has not been filed, as such, the order impugned cannot be passed by the court concerned. He also submitted that procedure prescribed under Order 22 Rules 3 & 4 is to be followed in proper manner otherwise the suit cannot proceed. He also submitted that earlier the matter came up before this Court and this Court has decided the matter vide judgement dtd. 26/9/2019 as such court should proceed in proper manner.