Allahabad High Court
Rajan Singh And 3 Others vs Additional Commissioner ... on 13 July, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 5578 of 2021
Petitioner :- Rajan Singh And 3 Others
Respondent :- Additional Commissioner (Administration) And 7 Others
Counsel for Petitioner :- Dinesh Kumar
Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava,Kumar Ankit Srivastava,Raunak Parekh
Hon'ble Pankaj Bhatia,J.
Heard counsel for the petitioners, Sri C.K. Parekh, Senior Advocate assisted by Sri Kumar Ankit Srivastava and Sri Raunak Parekh, counsel for the respondents No. 4 to 8, learned Standing Counsel appearing for the Respondents No. 1 and 2 and Sri Avinash Chandra Srivastava, counsel for the respondent No. 3 and perused the record.
The present writ petition has been filed seeking quashing of the order dated 23.7.2016, 2.11.2017, 16.2.2018 passed by the Respondent No. 2 as well as the impugned order dated 29.9.2020 passed in Revision No. 199 of 2019 and Revision No. 2205 of 2018-19.
The contention of the counsel for the petitioner is that Respondent No. 4 filed a suit before the Respondent No. 2 under Section 116 of the UP Revenue Code against the Respondent No. 5 to 8 for declaration and for partition. In the said suit, it was stated that the Respondent No. 4 to 8 are co-sharer of the property in question being property situated at Khata No. 27, Khasra Nos. 168, 241/1 and 259, Khata No. 28, Khasra No. 244/1 and 247 & Khata No. 99, Khasra No. 164 and 261.
On the basis of the parties appearing before the Respondent No. 2, a preliminary decree was passed by the Respondent No. 2 in favour of the plaintiff on 23.7.2016 (Annexure No. 2). Subsequently, final order was also passed on 2.11.2017 and subsequently, a decree dated 16.2.2018 was prepared on the basis of order dated 2.11.2017.
The contention of the counsel for the petitioner is that the petitioner is not the owner of the properties disclosed in the plaint and subject matter of the suit, however, on the basis of the compromise decree, efforts were made for encroaching upon the property owned by the petitioner, which is separate and distinct from the suit property. The petitioner filed a restoration application seeking recall of the preliminary decree, the order dated 2.11.2017 as well as the final decree dated 16.2.2018. The said application seeking recall of the said orders was rejected on 23.10.2018.
It is further argued that against the rejection order dated 23.10.2018, the petitioner preferred a revision no. 199 of 2018-2019 before the Respondent No. 1. It is also stated that the petitioner also filed a Revision No. 2205 of 2018-2019. Both the said revisions were dismissed vide judgment dated 29.9.2020. Against which the present writ petition has been filed.
The counsel for the petitioner also argues that during the pendency of the revisions, an interim order was passed in favour of the petitioners. He, thus, argues that as the petitioners enjoyed interim protection during the pendency of the revisions, interim protection may also be granted in the present proceedings.
This Court raised a specific query as to whether the petitioners claim any ownership rights over the properties scheduled at the foot of the plaint in the suit filed by the Respondent No. 4 to which the counsel for the petitioner categorically states that he does not have the ownership over the Khata numbers and Khasra numbers disclosed in the plaint. However, he insists that on the basis of the said decree efforts are being made for entering into the property of the petitioner, which is separate and distinct from the property which was subject matter of the suit. That being the case, the petitioner had no locus to get the partition decree set aside and any apprehension with regard to encroachment of the property owned by the petitioner on the basis of the decree dated 16.2.2018 could be challenged in separate proceedings. The petitioner has no right whatsoever to seek the recall of the decree dated 16.2.2018 as admittedly he is neither the owner of the part of the property nor is he a co-sharer over properties specified in the plaint as extracted above.
In view of that no error can be found in the orders passed by the Court below. The writ petition lacks merits and is dismissed.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.
Order Date :- 13.7.2021
vinay
