RAJ BAHADUR BANKU Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) Impugned herein are the orders dated 29.9.2004 and 7.12.2004 passed by trial court and Revisional Court respectively whereby the application filed by the defendants under Order VII Rule 11 C.P.C. was dismissed.

(2.) The dispute in the instant petition revolves round the Bhumidhar land of Dharamraj situated in village Unao Pargana Atharwan Tahsil Manjhanpur District Kaushambhi. Dileep Kumar son of Dharamraj arrayed as respondent no.3 in the instant petition instituted a suit under Section 229 B of the U.P.Z.A. & L.R.Act with the allegations that the landed property has been inherited by him, he being the only son of Dharamraj and that the defendants got their names mutated in the revenue record claiming themselves to be the successors of Dharamraj by setting up an unregistered Will. It is further alleged that at the relevant time, the plaintiff was minor and the defendants by manufacturing an unregistered will, got their names mutated in the revenue records. It was further alleged that the plaintiff being the only son of Dharamraj, the property devolved upon him. The suit instituted by the plaintiff prayed for the relief of declaration of his Bhumidhari rights. The defendants entered the contest by filing written statement in which they repudiated the plaint allegations. In the litigative fray, the defendants agitated a preliminary objection on the ground that notice required under Section 80 C.P.C. read with Section 106 of the Panchayat Raj Act was wanting and in consequence, they prayed for dismissal of the suit. In its turn the trial court disallowed the plea raised by way of preliminary objection and held the suit maintainable. In revision, the revisional court lent affirmance to the order of the trial court holding that the order impugned had been passed on merits. It is in this perspective that the petitioners brought their grievance to the Court by means of the present petition.

(3.) Learned counsel appearing for the petitioners polemically argued that notice under Section 80 of the C.P.C. has the complexion of a mandate and non-compliance thereof would be fraught with the consequence of non-suiting the plaintiff and therefore, it is further argued, the suit was liable to be dismissed on this ground alone. The learned counsel placed credence on two decisions namely, Commissioner, Agril. I.T v. Keshab Chandra, AIR1950 SC 265 , [1950 ]18 ITR569 (SC ), [1950 ]1 SCR435 and Sheo Pujan and Ors. v. Gram Sabha and Ors., 1964 RD 157 and taking cue from these decision, the learned counsel reasoned that even if there was any hardship or inconvenience, the phraseology employed by the legislature could not be stretched to mean otherwise if the same is clear and leaves no manner of doubt in its meaning. Per contra, learned Standing counsel contended that the impugned orders were passed in accordance with law and the writ petition has rendered itself liable to be dismissed.