JAWAHAR LAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) It is stated by the learned counsel for the petitioner and respondent no. 4, as also by the learned counsel for the Gaon Sabha, Sri Diwakar Singh that the issue in this petition is confined between the petitioners and respondent no. 4.

(2.) Learned counsel for the petitioner is permitted to delete respondent Nos. 5, 6, 7 and 8 from the array, who are said to be vendors of the suit property and their names already stand mutated out of the revenue records.

(3.) This petition arises from a suit filed for partition of Khata No.202, comprising Gata Nos. 636 and 637, admeasuing a total of 0.9200 hectares, situate in Village Gopalpur, @ Laludih, Pargana Nababganj, Tehsil Soraon, District Allahabad (Prayagraj). The suit was brought by respondent No.4 against the petitioner no.5 and the predecessors-in-title of petitioners nos. 1 to 4, arrayed as the two defendants. The plaintiff claimed a half share in the Khata on the basis of a sale deed and acknowledged 1/4th share of the two defendants. The suit aforesaid that was numbered as Suit No.274 of 2011 on the file of the Sub-Divisional Officer, Soraon, Allahabad. The suit aforesaid had a date fixed for hearing on 28/7/2012. A perusal of the certified copy of the order-sheet shows that on 28/7/2012, there was strike by the members of the Bar on account of which the case was adjourned to 6/10/2012. Surprisingly, much before that date, on 9/8/2012 the suit was taken up for hearing, without there being any order advancing the date from 6/10/2012, and on that date without hearing the defendants, a preliminary decree was passed. An averment to this effect has been made specifically in paragraph-19 of the writ petition. This preliminary decree was passed by Sri Shatrughan Vaishya, the then Sub-Divisional Officer, Soraon, District Allahabad. On 6/10/2012, when the defendants went to attend the date fixed, they came to know, much to their surprise, that the suit had already been disposed of on 9/8/2012 with a preliminary decree passed. Accordingly, they made an application dtd. 11/10/2012 to the effect that the preliminary decree was one made ex parte and prayed that the same be set aside, affording the defendant-petitioners an opportunity of hearing. The application was supported by an affidavit. The said application came to be rejected on 31/12/2013 by the Sub- Divisional Officer, Soraon, District Allahabad, recording that they are prima facie on a feeble foot as the earlier date fixed in the case, that is, 6/10/2012 was advanced on an expedite application to 9/8/2012, when the preliminary decree was passed. It is, however, recorded that the Restoration Application was heard in the absence of the defendant-applicant, and again on hearing the plaintiff alone. This fact has been denied by the petitioner. However, the application for restoration has been rejected on ground that in the Restoration Application seeking to set aside the preliminary decree passed on 9/8/2012, there is nothing said about how the preliminary decree is bad on merits. All that is said is that the date of the suit already fixed was advanced without notice to the defendants. With these remarks, the restoration application has been turned down by the Sub-Divisional Officer.