Girwar Singh vs State Of U.P. And Others
2022 Latest Caselaw 15617 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 12.10.2022
 
Court No. - 52 					Delivered on 02.11.2022
 

 
Case :- WRIT - B No. - 52960 of 2003 
 
Petitioner :- Girwar Singh 
 
Respondent :- State of U.P. and Others 
 
Counsel for Petitioner :- Amit Krishan 
 
Counsel for Respondent :- C.S.C.,H.N. Sharma,Panchu Ram Maurya,Pankaj Dwivedi,Santosh Kumar Upadhyay,Vinod Kumar Upadhyay 
 

 
With 
 

 
Case :- WRIT - B No. - 52958 of 2003 
 

 
Petitioner :- Girwar Singh 
 
Respondent :- State of U.P. and Others 
 
Counsel for Petitioner :- Amit Krishan 
 
Counsel for Respondent :- C.S.C.,H.N. Sharma,Pankaj Dwivedi 
 

 
Hon'ble Chandra Kumar Rai,J. 

1. Heard Mr. Amit Krishan for petitioner, MR. Vinod Kumar Upadhyay, Mr. Panchu Ram Maurya, Mr. Kunal Ravi Singh for private respondents and learned Standing Counsel for respondent Nos.1 and 2.

2. Both the abovementioned writ petition have been filed against the same judgment dated 25.09.2003 passed by Board of Revenue in Revision Nos.52 and 53 of 2001-02 as such both are being heard and disposed of by common judgment.

3. The brief facts of the case are that petitioner and respondent Nos.4 and 5 are real brothers. Respondent No.3 is the nephew of petitioner and son of respondent No.5. Petitioner and Respondent Nos.4 and 5 are sons of Ram Kishan, who had land in village-Bhaledi, Tehsil-Jansath, District-Muzaffar Nagar comprises of Khata No.127 Khasara No.391 area 3.277 Hectare (15 bigha 15 biswa) and in village Jansath, Tehsil-Jansath, District-Muzzaffar Nagar comprises of Khata No.435 Khasara No.544 area 4.797 hectare. Ram Kishan had land in village-Sadur comprises of Khata No.125, Khasara No.406 area 1.495 hectare, village-Jansath comprises of Khata No.107, Khasara No.120 area 0.359 hectare, Village-Nagla, Chadhay comprises of Khata No.123, Khasra No.05, area 3.288 hectare. The property in dispute as mentioned above was sold in favour of Ram Kishan and others thus, vendees became co-sharer of the property purchased by them. As per family agreement dated 30.06.1994, it was agreed between petitioner and respondent Nos. 3 and 4 that property of Ram Kishan would be partitioned between them in 1/3 share each with the clarification that the family agreement dated 30.06.1994 will be in respect to property in dispute only, the possession was accordingly given to the parties. According to petitioner respondent No.3 fraudulently prepared a unregistered family settlement dated 23.06.1995 taking signature of the petitioner on the blank paper and on the basis of forged family settlement dated 23.06.1995, respondent No.3 filed two cases, which were numbered as case No.70 and 71 of 1994-95 under Sections 176, 177 of U.P.Z.A. & L.R. Act for partition of the land in dispute, the cases were filed on 07.07.1995. It has been alleged that petitioner along with other person filed common written statement on 12.07.1995 stating that kurra may be prepared according to family settlement made between the parties although there was no signature of the defendant/petitioner on the written statement, the same was signed by the Counsel. On the basis of the written-statement dated 12.07.1995 trial court passed the order for preparation of kurra accordingly petitioner filed written objection on 08.03.1996 denying the claim of plaintiff. On behalf of petitioner one application was alleged to be moved on 07.04.1997 that he did not want to press his objection dated 08.03.1996 and the kurra may be prepared accordingly as per pleading of the plaint. Trial Court vide order dated 31.03.1998 ordered for partition of disputed 0plots as per family settlement dated 23.06.1995 and ordered for preparation of preliminary decree, the final decree was ultimately prepared on 25.05.1999. Petitioner alleged that he came to know about the judgment/ decree dated 31.03.1998 and 25.05.1998 on 17.01.2001 accordingly applied for restoration/delay condonation on 18.01.2001 stating that petitioner never filed written statement nor attended the proceeding under Section 176/177 of U.P.Z.A. & L.R. Act. Trial Court vide order dated 20.05.2002 condoned the delay in filing restoration application dated 18.01.2001 as well as allowed restoration-application dated 18.01.2001 setting aside the judgment/ decree dated 31.03.1998 and 25.05.1998 and restored the partition suit on its original number for decision afresh. Respondent No.3 challenged the order dated 20.05.2002 through Revision under Section 333 of U. P. Z. A. & L. R. Act before Board of Revenue, Allahabad the same were registered as Revision Nos.52 and 53 of 2001-02 before Board of Revenue U.P. At Allahabad, the Revisions were heard together and the same were allowed vide order dated 25.09.2003 setting aside the order dated 20.05.2002 and judgment/ decree for partition/kurrra dated 31.03.1998 and 25.05.1998 were maintained. Hence present writ petitions on behalf of partitioner to challenge the impugned orders passed in revision No.52 and 53 of 2001-02.

4. This Court on 01.12.2003 entertaining the writ petitions passed the following inter order:

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5. In pursuance of the order dated 01.12.2003 respondents have put in appearance and filed their counter affidavit along with an application for vacation of interim order. Petitioner filed his rejoinder affidavit also to the Counter affidavit filed by contesting respondents.

6. Counsel for the petitioner submitted that Board of Revenue has committed illegality in allowing the revision against the order condoning the delay and restoring the partition suit on its original number for fresh decision on merit. He further submitted that revisional court has illegally held that order of trial court for partition decree was not based on fraud. He further submitted that petitioner neither appeared before trial court nor filed any written-statement , objection or application, as such the entire proceeding conducted in trial court was ex-parte against the petitioner based on fraudulent process, as such the same was rightly set aside by trial court on the restoration and delay condonation application filed by petitioner for decision of partition case on merit but the same has been illegally set aside in exercise of revisional jurisdiction which is against the law. He further submitted that revisional court has exceeded his jurisdiction in holding that no fraud has been played while obtaining partition decree as such impugned revisional order is liable to be set aside. He placed reliance upon following judgments of this Court on the point of exercise of revisional jurisdiction as well as on the point of liberal view in delay condonation matter.

 
1.	 2001 (92) RD 562
 
   	 Kashi Nath and another vs. Board of Revenue U.P. Allahabad 	 	and others.
 
2.	Writ B No.303 of 2022
 
	Ashok Singh  and 3 others vs. State of U.P. And 5 others 	decided on 12.05.2022.
 

7. On the other hand Counsel for the private respondents submitted that alleged agreement dated 30.06.1994 have been arrived at amongst petitioner and respondent No.6 (petitioner's son) the same has no concern with respondent Nos.3, 4 and 5 rather family arrangement dated 23.06.1995 was fair conciliation of all family members arrived at among the parties, which was made basis of partition decree. They further submitted that village Jansath is situated at a short distance from Delhi and petitioner regularly visited village Jansath from Delhi to look after the property of his share. They further submitted that petitioner himself engaged his counsel and filed vakalatanama in partition case, as such petitioner cannot say that entire proceeding of partition suit was ex-parte and based on fraudulent vakalatnama, written statement and application unless it is proved rather signature on all the document was of the petitioner but according to petitioner it was obtained by private respondent for correcting the revenue entry of petitioner. They further submitted that petitioner was literate man and had full knowledge of partition case Nos.70 and 71 of 1994-95 and he was appearing in the case through Counsel. They further submitted that more than 3 years was taken in passing final judgment/decree in partition suit as such the revisional court has rightly exercised the jurisdiction to maintain the judgment and decree of trial Court for partition by which justice has been done between the parties. They further submitted that on the basis of partition decree dated 31.03.1998/25.03.1998 revenue entries have been corrected and parties are in possession of the plots according to final decree as such no useful purpose will be served to restore the partition suit for fresh decision so that parties may litigate for another 30 year in Court. They further submitted on the basis of averment made in the supplementary affidavit dated 17.02.2021 filed in writ petition No.52960 of 2003 that petitioner has executed two sale deed on 05.03.2001 according to kurra allotted for 1/3 share to petitioner under judgment/ decree dated 31.03.1998/25.03.1998, the sale deeds have been annexed as Annexure No.S.A.1 to the supplementary affidavit and no reply has been filed by petitioner to the supplementary affidavit dated 17.02.2021, the averment to this effect was made in paragraph No.33 of the counter affidavit filed on behalf of respondent No.4 dated 26.09.2022 in writ petition No.52958 of 2003 which has been replied by petitioner in rejoinder affidavit of petitioner dated 09.10.2022.

8. Paragraph No.33 of the counter affidavit and paragraph No.26 of the rejoinder affidavit are as follows:

Paragraph No. 33 of the counter affidavit of Respondent No.4-

"That the contents of paragraph 36 of the writ petition are incorrect. It is submitted that all the parties are in possession at their respective shares as per the final decree dated 25.05.1998. Even the petitioner have sold his share allotted to him in the kurra i.e. Khasra No.620/3 by means of two registered sale deeds dated 05.03.2011 in favour of one Kulsu and Wakil Ahamad. Thus, he has no grievance left in the manner."

Paragraph No.26 of the rejoinder affidavit of petitioner.

"That contents of para Nos. 29, 30, 31, 32, 33 and 34 of the counter affidavit are not admitted as stated. Hence denied. I reply to the same contents of par nos. 32, 33, 34, 35, 36, 37 and 38 of the writ petition are reiterated."

9. Counsel for the private respondents submitted that no interference is required against the impugned judgment both the writ petitions filed by petitioner are liable to be dismissed.

10. I have considered the submission advanced by learned counsel for the parties and perused the records.

11. There is no dispute about the fact that respondent No.3 (Karam Singh) filed two cases (70 and 71 of 1994-95 under Sections 176, 177 of U.P.Z.A.& L.R. Act for partition of land in dispute on 07.07.1995. Trial Court vide judgment and decree dated 31.03.2008/ 25.03.1998 partitioned the share and confirmed the kurra of the parties. On the restoration/delay condonation application dated 18.01.2001 filed by petitioner to recall the orders darted 31.03.1998/25.03.1998 and restored the partition case on its original number. The revision filed by respondent No.3 against the order of trial court dated 20.05.2002 was allowed and partition decree dated 31.03.1998/25.05.1998 was again restored.

12. Since in the partition suit petitioner was appearing through Counsel and vakalatnama of the counsel appearing for petitioner was very much on record but there is no averment in the restoration application/delay condonation application about the vakalatnama of petitioner on the record of the partition suit as such it cannot be said that petitioner was not afforded opportunity of hearing of partition suit which was instituted on 07.07.1995 and final partition decree was passed on 25.05.1998, the fresh trial of partition suit will cause further harassment to the parties as on the basis of judgment and decree of dated 31.03.1998/25.05.1998 the revenue entries of the parties were corrected and possession was also delivered to the parties.

13. There is one more aspect of the case that petitioner who has filed the present writ petition and obtained interim order dated 01.12.2003 has himself executed two sale deeds on 05.03.2011 in respect to disputed plots according to the kurra allotted to petitioner for 1/3 share under impugned judgment and decree for partition dated 31.03.1998/25.05.1998 the averment to this effect has been made by private respondents in both the writ petition but there is no specific denial by the petitioner although the sale deed annexed with the supplementary affidavit fully demonstrate that petitioner has executed sale deed on 05.03.2011 which is abuse of process of law. Hon'ble Apex Court in the case reported in (2007) 8 SCC 449 Prestige Lights Limited Vs. States Bank of India has held that an order passed by the competent Court, interim or final has to be abided without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such orders to hear him on merit.

14. So far as case law cited by counsel for the petitioner are concerned that liberal view be taken in delay condonation mater and normally there should be no interference in revisional jurisdiction against the order allowing restoration and delay condonation matter, it will be material to mention that sufficiency of cause and reality of cause are two different things, the court can take liberal view for the sufficiency of cause but there can be no liberal view for reality of cause, in the present case there is no explanation for the vakalatnama filed on behalf of petitioner in the partition suit, as such there is no question of ex-parte or fraudulent proceeding before the trial court unless it is proved in accordance with law as such case law cited by Counsel for the petitioner will not apply in the present controversy.

15. Considering the entire facts and circumstances of the case no interference is required against the impugned order dated 25.09.2003, passed by Board of Revenue in Revision Nos. 52 and 53 of 2001-02, the writ petitions filed by petitioner have no merit and the same are hereby dismissed.

16. No orders as to costs.

Order dated: 02.11.2022

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