RAM NAVAL SRI TAMESHAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) A suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by Binda and Lalita transferors of respondent No. 6 against the petitioner and other defendants. The suit was decreed. An appeal was filed by the petitioner, which was allowed, and the suit was remanded to the trial court for fresh decision. According to the petitioner the suit was dismissed in default but it was restored on 26.10.1976 and that it was again dismissed on 21.4.1977 but was restored on 18.8.1977 and that thereafter on that date itself the trial court passed a compromise decree. The factum of restoration as well as of the compromise between the parties is disputed by Shri Rahul Sripat counsel for respondent No. 6. This dispute about the facts however does not have any bearing on the controversy requiring decision in this writ petition and therefore the dispute about these facts can be left here. An application for setting aside the compromise decree was filed by respondent No. 6 on 2.5.2000, which was allowed by the trial court by its order dated 24.6.2002. The trial court took the view that no notice was served upon the respondent No. 6 the transferee and that consolidation proceedings were going on when the compromise decree was passed a finding which in effect is that the compromise order could not have been passed as the suit had abated. Against the order of the trial court the petitioner preferred a revision, which was allowed by the Additional Commissioner. The Additional Commissioner took the view that the consolidation proceedings started in the year 1986 and the revision in proceedings for setting aside the decree therefore would not abate. Against the order of the Additional Commissioner, a revision was preferred by respondent No. 6. The Board of Revenue in its impugned order dated 28.2.2006 has taken the view that as the consolidation proceedings had started in the year 1986 the revision ought to have been abated and it passed an order abating the revision as well as the suit. Aggrieved the present writ petition has been filed.

(2.) I have heard Shri R.S. Mishra, counsel for the petitioner and Shri Rahul Sripat counsel for respondent No. 6. Counter and rejoinder affidavits have been exchanged in this petition and the counsel for the parties agree that the writ petition may be disposed of finally.

(3.) The only controversy involved in the present case is whether the Board of Revenue was right in taking the view that the proceedings had abated. The restoration application was filed by respondent No. 6, which was allowed by the trial court. The law upon the point that a restoration application does not abate on the notification under the Consolidation of Holdings Act is settled, but doubt has been raised upon the question whether a pending appeal or revision arising out of an order allowing restoration would abate. In Sheo Pujan Singh and Anr. v. Smt. Bhagesara Kunwari and Ors. 1985 RD 163 it has been held that restoration application and revisions arising there from do not abate under Section 5(2) of the U.P. Consolidation of Holdings Act. Section 5(2) of the Act provides for abatement of proceedings relating to correction of the records and of cases in which declaration of rights over land is involved. An application for restoration or to set aside an ex parte decree does not by itself involve a declaration of rights of the parties over land as what is to be decided in these proceedings is whether sufficient cause for absence has been shown and therefore such an application does not abate under Section 5(2)(a) of the Act. An application for setting aside a compromise decree too does not involve declaration of rights over land.