HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 5
Case :- WRIT - B No. - 69661 of 2011
Petitioner :- Santosh Kumar And Others
Respondent :- D.D.C. And Others
Petitioner Counsel :- Rahul Sahai
Respondent Counsel :- C.S.C.,Mahesh Narain Singh,Shamshul Islam
Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri Rahul Sahai learned counsel for the petitioners and Sri Ayub Khan for the respondent no. 7.
This is yet another peculiar case where this litigation is sought to be contested on the ground that the judgment and decree dated 24th December, 1971 said to have been passed in favour of the predecessor in interest of the petitioners is intact and as such, the consolidation authorities have misconstrued the impact of the said judgment and decree to arrive at a wrong conclusion.
The background in which the proceedings came to be contested is that the petitioners claim to have acquired title over the disputed holding under an ex-parte decree dated 24.12.1971. The entire judgment and decree which is on record is quoted herein below:-
"This is the case U/s 229-B U.P. Z.A. and L.R. Act defendants are absent despite full knowledge of the case the plaintiff has produced exparte evidence against the defendant and has proved his case the suit is therefore decreed exparte. Let the papers be corrected."
From a perusal thereof, it appears that it was a suit filed under Section 229B of the 1950 Act and in the absence of the defendants the suit was decreed by a four line order.
It appears that a restoration application was filed and the said restoration application was considered and orders were passed on 21st March, 1975. The order passed thereon is also gainfully extracted hereinunder (Page 64 of the paper book.):-
"vkt ;g eqdnek is'k gqvk] nj[okLr lk;y lgknr ds ckjs es odhy Qjhdsu dh cgl lquh x;h rFkk ikWp :i;s gtsZ ij nj[okLr Lohd`r gqbZA izkFkhZ viuh lgknr fnukad 1-4-1975 dks gtkZ lfgr izLrqr djsA^^ A revision against the said order dated 21st March, 1975 was preferred by the predecessor in interest of the petitioners and a copy of the memo of revision is Annexure 8 to the writ petition. Ground No. 1 of the said revision narrates that the learned lower court has reopened the entire evidence without recording any reasons for it inspite of the fact that the evidence of the defendants had been closed. The said revision which was against the order dated 21st March, 1975 was entertained and the hearing of the revision was stayed by the order dated 25th July, 1975 on the ground that since consolidation operations have intervened, therefore the parties would now get their rights declared in the said proceedings which would be binding on them. A copy of the said order is on record at Page 79 of the paper book.
It appears that the objections of the petitioners were grounded on the strength of the ex-parte decree dated 24th December, 1971. The issue therefore is as to whether the said decree did exist and was operative so as to enable the petitioner to seek such a declaration on the strength thereof. The authorities have concurrently concluded that the decree was ex-parte and have treated the same to have been set aside under the order dated 21st March, 1975.
Sri Rahul Sahai submits that the order dated 21st March, 1975 nowhere reflects the setting aside of the ex-parte decree and therefore all the authorities have misconstrued the context of the order dated 21.3.1975. He therefore submits that the orders proceed on an erroneous assumption hence they deserve to be set aside.
Sri Ayub Khan on the other hand contends that as a matter of fact the order dated 21st March, 1975 may not specifically recite the setting aside of the order dated 24.12.1971, yet the matter had been restored and which stands reflected from the subsequent order passed in the revision as already appended by the learned counsel for the petitioner. He therefore submits that in sum and substance, the impact of the judgment and decree dated 24.12.1971 had already been taken away and parties had conciled themselves to the status of litigating the matter before the consolidation courts in respect of their claims.
Having heard learned counsel for the parties and the learned Standing Counsel for the respondent nos. 1, 2 and 3, the contention raised on behalf of the petitioner that there is no specific order setting aside the order dated 24.12.1971 appears to be an attractive argument at first flush, but on a perusal of the order dated 21.3.1975 coupled with ground no. 1 taken in the revision makes it clear that the petitioners predecessor in interest had accepted the position that the judgment and decree had been set aside. They did not approve of the restoration for which the revision had been preferred referred to herein above. The restoration was allowed on payment of Rs. 5/- as costs. Not only this, the order of the revising authority which has been brought on record dated 25.7.1975 also clearly reflects as if the judgment and decree dated 24.12.1971 had already been set aside and matter had been restored. In view of the consolidation operations having set in, the matter was to be contested finally between the parties before the consolidation courts.
The petitioners including their predecessor in interest appear to have reconciled themselves with the said order and have acquiesced to that position, there is nothing on record to indicate that any further challenge was made to the orders passed either in the revision or proceedings in relation to the suit filed under Section 229B. In essence the proceedings under Section 229B were therefore treated by the parties themselves to have abated and they went whole-hog to contest their rights before the consolidation courts. The consolidation courts therefore were right in presuming that the ex-parte decree dated 24.12.1971 was no longer in existence and operative so as to enable it to grant any relief to the petitioners on the strength thereof.
Accordingly I see no reason to interfere with the impugned orders. The writ petition is dismissed.
Order Date :- 2.12.2011 Sahu