RAM MAURYA Vs. IXTH ADDITIONAL DISTRICT JUDGE FAIZABAD

JUDGEMENT

(1.) Heard Sri Kapil Muni Debey, learned counsel for the petitioner and Sri Rajendra Pratap Singh, learned counsel for the respondents.

(2.) Facts, in brief, is that the property in suit is landed property which belongs to the petitioner. When the petitioner was minor and during his study period, the land in question was given to opposite party no.3 for the purpose of kast on batai and as soon as the petitioner became major and completed his study, he tried to obtain the land from opposite party no.3. Opposite party no.3 entered his name in class IX and denied to leave his possession on the basis of entry made in class IX. Thereafter, the petitioner filed a suit for ejectment under Section 202 of the U.P.Z.A. & L.R. Act which was decreed, against which an appeal was filed and was dismissed. Feeling aggrieved, a writ petition was filed which was also dismissed vide judgment and order dated 28.11.1994. When the petitioner was under the preparation to file a suit for declaration, the opposite party no.3 filed a case under Section 33/39 of the Land Revenue Act for entering his name in the revenue record in the main column on the basis of judgment and order passed in the proceeding under Section 202 of the U.P.Z.A. & L.R. Act, which was rejected with the finding that the right and title had not been ascertained in the proceeding, as such no entry is required on the basis of the judgment and order passed in proceeding under Section 202 of the U.P.Z.A. & L.R. Act. Thereafter, opposite party no.3 filed regular suit under Section 229B of the U.P.Z.A.& L.R. Act for declaration of right and title. The suit was dismissed in default and after lapse of long spell of time, a restoration application was moved which was rejected on 12.8.1996. Thereafter, an appeal was preferred by the opposite parties which was allowed and remanded the matter on 13.2.1998. Thereafter, the suit was again decided ex parte and was dismissed on merit on 12.6.1998. The petitioner, being aggrieved, preferred revision bearing Revision No.25 of 1998-99 before the Board of Revenue, Allahabad which is said to be pending consideration. In view of the above facts, the right and title of the opposite party is still sub judice before the competent court and the opposite party no.3 may seek of such remedy which he wants in the revision filed before the Board of Revenue. Opposite party no.3, knowing this fact, filed a regular suit for permanent injunction before the Civil Court ignoring the proceeding pending before the competent revenue court. After service of summons, the petitioner appeared before the court below and filed his written statement taking specific plea regarding jurisdiction of entertaining the suit while pending the proceeding before the revenue court. Issue was framed as issue no.5 that whether the suit is barred under Section 331 of the U.P.Z.A.& L.R. Act and while considering the issue no.5, IInd Additional Civil Judge, Junior Division, Faizabad decided the issue holding that the suit is maintainable and is not barred by Section 331 of the U.P.Z.A. & L.R. Act on the ground that the name of the petitioner was entered into clause 9ga of the revenue record. Revision was filed against the order deciding the issue no.5 by the Civil Judge, Junior Division, wherein the order was affirmed.

(3.) The petitioner, being aggrieved by the both the orders, has filed the present writ petition on the ground that the right and title of opposite party no.3 is still sub-judice before the competent court of law, therefore, a remedy which he wants to obtain from the civil court, is not available to him. He next submitted that the proceeding initiated by way of suit is barred by principle of res judicata. He further submitted that opposite party no.3 has already taken this plea in the earlier proceeding which was decided against him, thus the present suit is barred by principle of estoppal.