RISHIRAM Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The petitioners who are four in numbers instituted a suit being suit No. 240 of 1994-95-96-97 under Section 229-B of U.P.Z.A. & L.R. Act (hereinafter referred as the Act) against the contesting respondents 6 to 11 in respect of plot Nos. 89, 90, 52, 53, 54, 55, 56 and 59 total eight, total area 3 bigha, four biswa, fourteen dhur situated at village Akabarpur, Mugarson, Pargana Mah, Tehsil Handia, district Allahabad, on the allegations that the said plots belonged to their father late Nankoo, whose name was recorded in the revenue records as Bhumidhar in the basic year. During consolidation operation in the village, the name of Late Nanakoo son of Ayodhya the father of the petitioners was recorded in Akarpatra. Since there was an mistake in the revenue records the petitioners did not file any objection during consolidation operation. It appears that after the close of the consolidation operation the names of the contesting respondents who are defendant No. 2 to 8 in the suit were illegally got recorded, consequently the aforesaid suit under Section 229-B of the Act was instituted.

(2.) The defendant/respondents filed their separate written statements. On the basis of the pleadings of the parties, the Sub Divisional Magistrate, Handia framed the issues. Issue No. 3 is to the effect as to whether the suit is barred under Section 49 of the U.P. Consolidation of Holdings Act. An application was filed by the contesting respondents who are defendants in the suit that the said issue be decided as a preliminary issue. The Sub Divisional Magistrate by the order dated 17th July, 1997 (Annexure-7 to the writ petition) refused to decide the issue No. 3 as a preliminary issue on the ground that it is necessary to have evidence of the parties first. He was of the view that the basic facts and evidence relating issue should come on the record before decision of the said issue. Aggrieved against the aforesaid order dated 17th July, 1997, some of the defendants filed an appeal and the remaining defendants filed revision before the Additional Commissioner I, Allahabad Division Allahabad. The revision and the appeal were heard and were disposed of by a consolidated order dated 23rd of December, 1998 by which the Additional Commissioner allowed the appeal and remanded the matter to the Trial Court for a fresh decision after giving opportunity of hearing to all the parties concerned. It may be stated here that during pendency of the suit defendant No. 3, Mahavir son of Ayodhya expired. An argument was raised before the Additional Commissioner that the Trial Court should have first disposed of the substitution application to substitute the heirs of deceased Mahavir before passing the order dated 17th July, 1997. The appeal to the Additional Commissioner by order dated 23.12.1998 filed as Annexure-8 to the writ petition, set aside the order dated 17th July, 1997 and restored the matter to the file of the trial court to rehear and reconsider the matter alter giving proper opportunity of hearing to all the parties concerned.

(3.) Subsequently, an application on behalf of Smt. Ram Kali, Smt. Ram Rati and Indra Bahadur, contesting respondent No. 6, 7 and 8 to the writ petition for reviewing the order dated 23rd December, 1998 was filed on 12th January, 1999, on the ground that the appeal filed by them may be allowed in toto and portion of the order remanding the matter to the Trial Court be set aside. This review application has been allowed by the new incumbent namely, Sri D.N, Shukla, Additional Commissioner by the impugned order dated 7th April, 2003 on the ground that his predecessor in his order has failed to appreciate properly the legal position and as such in the interest of justice the said order is liable to be reviewed. The order dated 7.4.2003 was unsuccessfully assailed by the present petitioners before the Board of Revenue U.P. Allahabad. Feeling aggrieved against the aforesaid two orders dated 7.4.2003, passed by the Additional Commissioner Allahabad, in Revision No. 83/97/98-99 and the order dated 07.05.2003 passed by the Board of Revenue U.P. at Allahabad, the present writ petition has been filed for quashing of the aforesaid two orders as well as the order dated 23.12.1998.