AKHIL KUMAR Vs. BOARD OF REVENUE LUCKNOW

JUDGEMENT

(1.) R. R. K. Trivedi, J. This writ petition has been filed for quashing the order, dated 30-8-1994, Annexure I passed by the Board of Revenue, by which revision of the petitioners has been dismissed and order dated 10-6-1991, passed by Assistant Collector First Class/sub-Divisional Officer, Sadar Bulandshahr by which he allowed application of respondents No. 4 to 6 for setting aside the ex pane decree and implead them as defendant in the suit filed by petitioner No (. 1, under Section 229-B/176 of U. P. Z. A. and L. R. Act (hereinafter referred to as the Act ).

(2.) FACTS giving rise to this petition are that plot No. 57, area 8-2-14 of Khata No. 75 and plots Nos. 66 and 67, area 1-5-0 and 1-12-10 respectively of Khata No. 26 were recorded as exclusive land holding of respondent No. 7 Sanjay Kumar. Petitioner No. 1 Akhil Kumar, real brother of respondent No. 7, filed the aforesaid suit on 4-11-1987 against Sanjay Kumar and petitioners Nos. 2 to 4 for declaration and partition under Section 229-B/176 of the Act. Gram Sabha and State of U. P. were arrayed as defendants Nos. 5 to 6 in the suit. In this suit, an application was filed on 26-11-1988 saying that parties have compromised and each of the brother has 1/5th share in the land in dispute and prayed that the compromise may be accepted and preliminary decree may be prepared. On this application, the suit was decreed by respondent No. 3 on 20-1-1989. The judgment has been filed as Annexure 4 to the writ petition. A perusal of the order, dated 20-1-1989 shows that the suit was decreed mainly on the basis of the compromise and there is no reference of the Gaon Sabha and State of U. P. as to whether they contested the suit or filed any written statement. By the said order Lekhpal was directed to be summoned for filing Kurras. A final decree was prepared on 27-4-1989 dividing the land in dispute in five shares. Respondents No. 4 to 6 on knowing about the aforesaid final, decree, moved an application on 27-6-1989 (Annexure VIII to the writ petition) and prayed that the ex parte decree may be set aside and they may be impleaded as defendants in the suit. The facts stated in this application were as under : (i) That respondent No. 7 Sanjay Kumar was exclusive tenure-holder of the land in dispute. This is his self-acquired property. (ii) That the applicants (respondents 4 to 6) purchased the land in dispute by two registered sale-deeds executed in their favour on 1-10-1986 and 24-10-1986 for a total consideration of Rs. 69,000. (iii) That other brothers of respondent No. 7 had no interest. Applications for mutation of their names on the basis of the sale-deeds are pending as case Nos. 110 of 1987 and 18 of 1987 respectively. (iv) That Raghuraj Singh, father of respondent No. 7 has. filed Original Suit No. 118 of 1986 for cancellation of the sale-deeds which is pending -in Civil Court. (v) That Sanjay Kumar, respondent No. 7 had also filed Original Suit No. 174 of 1987 for cancellation of sale-deeds which is also pending in the Civil Court. (vi) That petitioners were necessary parties in the aforesaid facts and circumstances but they were not deliberately impleaded as defendants. (vii) That decree has been obtained behind their back just to defeat their valuable interest. (viii) That the decree has been obtained by concealing facts and playing fraud on the Court in collusive manner.

(3.) SECOND submission of the learned counsel; for petitioner is that 'as the petitioners and respondent No. 7 are. real brothers and members of Joint Hindu Family, they could partition the land in dispute on the basis of compromise and'1 the third party could not allege the same collusive and the decree could not be legally set aside on their instance. For this submission reliance has been placed in case of Jai Singh Rais v. Harnam Das and others, AIR 1964 All 381.