BHAGWAT SINGH Vs. RAJENDRA PRASAD ALIAS RAJENDER PRASAD

JUDGEMENT

(1.) THE petitioners are the plaintiffs in a suit under Section 229-B of the U.P. Z.A and L.R. Act, 1950 seeking a declaration of title over the disputed holding as Bhoomidhars. The said suit was decreed ex parte on 31st December, 1996. The plea raised was of adverse possession. Respondent No. 1-defendant filed a restoration application which was allowed on 22nd January, 1997 on the same day and the petitioners allege that the same was also ex parte. Consequently, the petitioners who are the plaintiffs aggrieved by the restoration order, filed a restoration on 24.1.1997 before the trial court itself which remained pending for setting aside the order dated 22.1.1997. Simultaneously, they also filed a revision which was dismissed as not maintainable on 27.3.1997 and a second revision before the Board also met the same fate on 08th January, 1998.

(2.) AGGRIEVED by the order of the learned Commissioner and the Board of Revenue referred to herein above, the petitioners filed writ petition No. 6811 of 1998 which was dismissed subject to the direction that since the petitioners' application dated 24.1.1997 for setting aside the order dated 22.1.1997 was still pending, the same shall be disposed of by the trial court within a period of six weeks. The judgment of this Court dated 27.7.1998 is annexure-6 to the writ petition.

(3.) SRI D.V. Jaiswal contends that once the High Court had directed the application of the petitioners to be decided then the same could have been disposed of after hearing the parties for which the date was fixed on 05.8.1998. The trial court without fixing any date for the next day proceeded to take up the matter on 06.8.1998 and not only dismissed the application of the petitioners but also dismissed the suit itself in default. Sri Jaiswal submits that this procedure adopted by the trial court was erroneous inasmuch as firstly the aforesaid action was in teeth of the directions of the Hon'ble High Court and without any notice to the petitioners or their counsel fixing 06.8.1998, secondly even if the application filed by the petitioners for setting aside the order dated 22.1.1997 is dismissed then the consequences are that the suit still survived, and the same could not have been dismissed in default as there was no date fixed for hearing in the suit.