Uttarakhand High Court
Dwarika Singh Bisht vs Mohan Singh And Others on 28 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE RAKESH THAPLIYAL, J.
28TH AUGUST, 2023
WRIT PETITION (M/S) NO. 541 OF 2010
Dwarika Singh Bisht ..........Petitioner
Versus
Mohan Singh and others. ....Respondents
Counsel for the petitioner : Mr. Tapan Singh.
Counsel for the respondents : Mr. Virendra Singh Rawat, learned
counsel holding brief of Mr. Dinesh
Chauhan, learned counsel for
respondent No. 1.
Mr. Mohinder Singh Bisht, learned Brief
Holder for the State of Uttarakhand /
respondent No. 2.
Ms. Anjali Bhargawa, learned counsel
for respondent No. 3.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT :
The petitioner was the plaintiff, who filed a suit
under Section 229-B of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 being Revenue Case No. 80 of
1993-94 Dwarika Singh Bisht vs. Mohan Singh & others in
the Court of Assistant Collector, Kotdwar, Pauri Garhwal on
the ground that the plaintiff is in possession over the
property in dispute, for more than 20 years, and he has
acquired Bhumidhari rights over the property in dispute on
the basis of adverse possession. The said Suit was decreed
ex parte by judgment dated 28.10.1994. Thereafter,
respondent No. 1 moved an Application under Order 9 Rule
13 of C.P.C. for setting aside the ex parte decree dated
28.10.1994 on the ground that he is the co-tenure holder in
the land in dispute and he was in service at Allahabad and
when he came to the village, then after perusing the
documents, he came to know that the name of plaintiff-
Dwarika Singh Bisht has been recorded and he has been
declared Bhumidhar. The petitioner also filed his objections
again contending therein that he is in possession since 1974
over the property in dispute and the defendant never
remained in possession, but just to avoid complicity,
respondent No. 1 offered to the plaintiff that the defendant
wants to sell the property to the plaintiff and he transferred
whatever rights were there of the defendant in favour of the
plaintiff on 02.08.1993 and also got an amount of Rs.
15,000/- from the plaintiff. The Order 9 Rule 13 C.P.C.
Application moved by the defendant was allowed on
14.11.2003. Against the said order, a revision was
preferred by the plaintiff (petitioner herein) before the
Additional Collector, Garhwal Mandal bearing Revision No. 3
of 2003-04 Dwarika Singh Bisht vs. Mohan Singh and others
and the revision was dismissed by judgment and order
dated 03.11.2008. Against the orders dated 14.11.2003,
15.12.2003 and the said revisional Court's order dated
03.11.2008, the present writ petition has been preferred by
the petitioner, who was the plaintiff in the suit.
2. A Co-ordinate Bench of this Court vide order
dated 17.04.2010 stayed the proceedings of Revenue Case
No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan Singh
Bisht pending before the Assistant Collector, 1st Class,
Kotdwar, District Pauri Garhwal. This interim order, passed
on 17.04.2010, was vacated by a Co-ordinate Bench of this
Court by order dated 07.07.2010. While vacating the order
dated 17.04.2010, the Co-ordinate Bench drew the following
observations in the order dated 07.07.2010:-
"Two weeks' and no more time is allowed to
the petitioner to file the rejoinder affidavit.
After hearing the learned counsel for the
parties, this Court does not find that the
proceedings before the trial court should remain
stayed. Consequently, the interim order dated
17th April, 2010 is vacated. The trial court would
proceed with the case which will be subject to the
final decision of the writ court."
3. The interim order dated 17.04.2010 was vacated
after hearing the counsel for both the parties.
4. Apart from this, undisputedly, the judgment and
decree passed by the trial court in the Revenue Case No. 80
of 1993-94 was ex parte, which was subsequently restored
vide order dated 14.11.2003 and the revision filed against
the said order was also dismissed on 03.11.2008.
5. This Court does not find any infirmity in restoring
the suit. Even otherwise, as per the order passed by the
Co-ordinate Bench of this Court dated 07.07.2010, the Co-
ordinate Bench was of the view that there is no such
material for staying the proceedings, and that was the
reason that the stay order was vacated by order dated
07.07.2010. The Co-ordinate Bench, while vacating the stay
order dated 17.04.2010, also directed the trial Court to
proceed with the case which will be subject to the final
decision of the writ Court.
6. After perusing the judgment and decree dated
28.10.1994, which was passed ex parte, the reasons as
given in the Application filed by respondent No. 1
(defendant in the suit) under Order 9 Rule 13 CPC, the order
dated 14.11.2003, whereby the Application filed under
Order 9 Rule 13 CPC was allowed and the suit was restored,
as well as the revisional Court's order dated 03.11.2018,
whereby the revision filed against the order dated
14.11.2003 was dismissed, I do not find any infirmity or
illegality in the orders impugned.
7. The writ petition is, accordingly, dismissed. The
trial Court should proceed with the revenue case.
8. Counsel for the petitioner, on instructions,
submits before this Court that the records of the Revenue
Case No. 80 of 1993-94 Dwarika Singh Bisht vs. Mohan
Singh and others, which is pending in the Court of Assistant
collector, Kotdwar, Pauri Garhwal, are missing.
9. Let the Assistant Collector, Kotdwar, Pauri
Garhwal furnish a status report with regard to the said
proceeding within a period of two weeks, failing which the
Assistant Collector, Kotdwar, Pauri Garhwal shall appear
physically before this Court on 15.09.2023.
__________________
RAKESH THAPLIYAL, J.
Dt: 28TH AUGUST, 2023
Rathour
