MAHENDRA SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the parties and perused the record.

(2.) This writ petition has been filed for the following relief:

(3.) Brief facts of the case are that the petitioner filed a suit under Sec. 176 of the U.P.Z.A. and L.R. Act for partition against the respondent No. 7, the brother and co-tenure holder of the land in dispute. The aforesaid suit was decreed ex-parte on 30/1/1993, and a preliminary decree was passed. After that, by order dtd. 30/3/1994, a final decree was also passed. After the passing of the final decree, consolidation operations began in the village concerned on 5/8/1995. After coming to know about the ex-parte decree, a restoration application was filed by the respondent No. 7 on 10/9/1999 for recalling the orders dtd. 30/1/1993 and 30/3/1994 passed by the trial court. The restoration application was allowed by the Court concerned by an order dtd. 23/12/1999. Since, in the meantime, consolidation operation began in the village involved, the proceedings of the suit were also abated by an order dtd. 23/12/1999. After the order dtd. 23/12/1999 was passed, allowing the restoration application and abating the suit, a recall application was moved by the petitioner on 5/12/2006. During this period, the property in dispute was sold by the respondent No. 7 in favour of respondent Nos. 5 and 6. The restoration application filed by the petitioner was allowed by order dtd. 24/8/2007 passed by S.D.M., Sambhal, and the order dtd. 23/12/1999 passed by the then S.D.O. Sambhal allowing the restoration application was set aside. On 1/9/2007, a review application was filed by respondents Nos. 5 and 6 to review the order dtd. 24/8/2007, which was allowed by the S.D.O., Sambhal, by its order dtd. 26/7/2010. By the order dtd. 26/7/2010, the earlier order dtd. 24/8/2007 was set aside, and the order dtd. 23/12/1999 was restored. Against the order dtd. 26/7/2010, the petitioner filed an appeal (Appeal No. 23 of 2009-10) before the Deputy Commissioner, Moradabad. The said appeal was allowed by order dtd. 15/12/2010, setting aside the order dtd. 26/7/2010 and order dtd. 23/12/1999. The order dtd. 24/8/2007 was restored. Against the order dtd. 15/12/2010 passed by the Deputy Commissioner, Moradabad, respondent Nos. 5 and 6 filed Revision No. 41 of 2010/11, which was allowed by the Board of Revenue by its order dtd. 2/11/2023. The Board of Revenue set aside the order dtd. 15/12/2010 passed by Deputy Commissioner, Moradabad, Mandal-Moradabad, the order dtd. 26/7/2010, 24/8/2007 and 23/12/1999 passed by the S.D.O., Sambhal. The Board of Revenue held that orders dtd. 30/1/1993 and 30/3/1994 and the orders passed by the Consolidation Courts will remain intact. Both parties were given the liberty to raise the matter before the Consolidation Courts. Against this order dtd. 2/11/2023, a modification application was filed by respondent Nos. 5 and 6, and the modification application was allowed by the Board of Revenue by order dtd. 11/12/2023. The Board of Revenue modified its earlier order dtd. 2/11/2023 to the extent that the Board of Revenue has set aside the order dtd. 15/12/2010 passed by the Deputy Commissioner, Moradabad and permitted the parties to raise their claim before the Consolidation Courts. The present writ petition has been filed against the orders dtd. 11/12/2023 and 2/11/2023 passed by the Board of Revenue.