- (1.) O. P. Garg, J. By means of this writ petition under Article 226 of the Constitu tion of India the petitioner, who was defen dant No. 3 in revenue suit No. 213/151 of 1994 under Sections 229 B, 209 and 164 of U. P. Z. A. and L. R. Act instituted by Mohd. Ayub, respondent No. 1, has challenged ex-parte decree in the suit aforesaid passed on 9-9-1994, order of dismissal dated 2-8-1995 passed in first appeal No. 130 of 1995 and order dated 29-12-1995 passed by the Board of Revenue dismissing the second appeal No. 30/1994- 95 as well as order dated 11-3-1996 rejecting the review ap plication No. 30/1995-96, which are respectively Annexures - 5,7,9 and 10 to the petition. It is prayed that the aforesaid orders be quashed.
(2.) COUNTER rejoinder and supplemen tary affidavits have been exchanged. Heard Sri G. N. Verma, Senior Ad vocate, assisted by Sri. D. N. Jaiswal, learned counsel for the petitioner as well as Sri. Ajeet Kumar for respondent No. 1 and learned Standing counsel at consider able length. The property in dispute, which is in the form of agricultural land, is located in village Shaha alias Pipalgaon, Tehsil Chail, District Allahabad. Undisputedly, one Madan Lal Ahuja was record landholder. The said land was acquired by the State Government by invoking the provisions of the Land Acquisition Act for the benefit of the Allahabad Development Authority. The amount of compensation is in deposit. Smt. Pushpa Sachdeva, residing at Delhi, is admittedly the daughter of deceased Madan Lal Ahuja. The present petitioner, Gauresh Ahuja, claiming himself to be the adopted son of late Madan Lal Ahuja, set up a Will purported to have been executed by the landholder in his favour. On the strength of the alleged Will he filed a tes tamentary case before this Court, which was ultimately registered as Testamentary Suit No. 1 of 1991. The said suit was con tested by Smt. Pushpa Sachdeva. who took two distinct pleas, firstly that the petitioner Gauresh Ahuja was never adopted by her father and secondly there was no occasion for Madan Lal Ahuja to execute a Will in favour of the petitioner and that the Will set up by the petitioner was forged and fictitious. The said tes tamentary suit was decided on 10-2-1998 by this Court and a copy of the judgment is Annexure-1 to the Supplementary Counter Affidavit of respondent No. 1. By a very detailed and elaborate judgment rendered by Hon'ble S. K. Phaujdar, J. it was held that the petitioner Gauresh Ahuja was not the adopted son of late Madan Lal Ahuja and that he has acquired no rights in the disputed property on the strength of the alleged Will, which was the product of fraud and undue influence. The petitioner has preferred a Special Appeal No. 207 of 1998, which is still pending.
(3.) IN the wake of the above facts, now let us examine the actual controversy raised in the present petition. Mohd. Ayub, respondent No. 1, filed a revenue suit No. 213/151 of 1994 for the relief of declaration of his title over the disputed land on the ground that late Madan Lal Ahuja, the recorded landholder, trans ferred possession of the land in question in his favour to secure the payment of Rs. 50,000/- by way of loan. IN the said suit, besides the State of U. P. and the Gaon Sabha, Gauresh Ahuja and Smt. Pushpa Sachdeva were impleaded as defendants No. 3 and 4. Smt. Pushpa Sachdeva filed a written statement. The trial Court Le. Ad ditional Sub-Divisional Officer, Chail found that inspite of sufficient service Gauresh Ahuja, defendant no. 3 (present petitioner) had not filed written state ment. The case proceeded ex-parte against him. The relief of. declaration as, claimed by Mohd. Ayub, respondent No. 1 was granted on 9-9-1994. The present petitioner challenged the ex-parte decree by taking recourse to two separate proceedings. He filed an application under Order IX Rule 13 C. P. C. before the trial Court and simultaneously also preferred a first appeal before the Additional Com missioner. It was registered as first appeal No. 130 of 1995. While the application under Order IX Rule 13 remained pending the first appeal filed by the petitioner was dismissed on 2-8-1995. Against the said order the petitioner approached Board of Revenue by filing second appeal No. 30/1994- 95. This second appeal was dis missed on 29-12-1995. An observation was made by the learned Member, Board of Revenue that the appeal was not main tainable as the appellant (present petitioner) had already moved an applica tion under Order IX Rule 13 C. P. C. , which was pending. The petitioner preferred a review application (No. 30/1995-96) taking the plea that the application under Order IX Rule 13 C. P. C. became infructuous as he had adopted the course of pursuing the appeal and second appeal. This review application was dismissed by the Board of Revenue by order dated 11-3-1996. It is in these circumstances the petitioner has come before this Court by filing the present writ petition to challenge the various orders aforesaid passed in the suit, first appeal, second appeal and the review application. The learned counsel for the petitioner vehemently argued that since the ex-parte decree was passed against the petitioner without effecting service upon him the decree is illegal and cannot be enforced against him. It was urged that the entire hierarchy of the revenue Court, right from trial Court to the Board of Revenue, have not appraised the real con troversy and have failed to record a categorical finding whether the service of the summons, if at all issued in the suit, had been effected on him or not.;