Hon'ble Devendra Kumar Arora, J. - (1.) BY means of present writ petition, the petitioner is seeking a writ in the nature of certiorari for quashing of the judgment and order dated 26.04.1985 of the Additional District Judge, Lucknow in Civil Misc. Appeal No. 27 of 1982 (Sarjoo Vs. Babu Lal and Others), by which while allowing the appeal the order of the learned Munsif was set aside with a direction to the trial court to proceed to dispose of the suit on merits in accordance with law and parties were directed to appear before the learned trial court on 25.05.1985.
(2.) THE submission of learned counsel for the petitioner is that the petitioner purchased plot no.483 area 5 Biswa 4 Biswansi and plot no. 484 area 5 Bigha 19 Biswan 1 Biswansi total area 6 Bigha 4 Biswa, 5 Biswansi situated in village Hariharpur, Pargana and Tehsil, Malihabad, district -Lucknow from Babu Lal (opposite party no. 2) who was recorded sole tenure holder of the land in question on consideration of Rs. 20,000/ -by way of sale -deed executed on 20th January, 1978. After the purchase of land in question, the petitioner applied for mutation for recording her name in the revenue records. A citation was issued in accordance with law, but in spite of opportunity available to opposite party no. 1 (Sarjoo), he did not file any objection opposing mutation application of the petitioner. Hence, in accordance with law, the name of petitioner was recorded in the revenue records in pursuance to the order of Naib Tehsildar, Malihabad dated 15th February, 1979 and appropriate entries were also made in Khasra and Khatauni thereto, expunging the name of Babu Lal (opposite party no. 2). Further submission of learned counsel for the petitioner is that opposite party no. 1 (Sarjoo) did not challenge the mutation order and the entries made, either under Section 210 of the Land Revenue Act or any other provision of law in the competent court of Revenue side. Hence, the entries made in favour of the petitioner were made final and binding on opposite party no. 1(Sarjoo). The opposite party no. 1 (Sarjoo) filed a suit for cancellation of sale -deed in the court of Munsif, Hawali against the petitioner as well as for impleading Babu Lal and Prem Kumar as opposite parties no. 2 and 3 alleging inter alia that he is Co -Bhumidhar of the land in question along with opposite parties no. 2 and 3 and claimed half share for himself and remaining half for opposite parties no. 2 and 3. The petitioner filed written statement on 01.02.1980 pleading therein that the suit of opposite party no. 1, in view of the pleading in plaint, is not cognizable in Civil Court. It is also submitted that in fact the opposite party no. 1 wants declaration under Section 321 of U.P.Z.A. and L.R. Act and remedies lies before the Revenue Court. The trial court framed following 8 issues: - I. Whether the plaintiff is joint bhumidhar of the land in suit as alleged in para 1 of the plaint? II. Whether the Plaintiff has half share in the land in suit as alleged in para 2 of the plaint? III. Whether the defendant No. 1 has not right to transfer the land in suit as alleged in para 6 of the plaint? If so its effect. IV. Whether the suit is barred by Section 333 of Z.A. And L.R. Act as alleged in para 16 of the written statement? V. Whether the defendant No. 3 is entitled to take the benefit of section 41 of T.P. Act as alleged in para 23 of written statement? VI. Whether the defendant no. 3 is bonafide purchaser as alleged in para 18 of the written statement? If so its effect. VII. Whether the plaintiff is not entitled for any relief against defendant no. 2? VIII. To what relief if any is the plaintiff is entitled?
(3.) THE learned trial court by means of order dated 30.10.1981 decided the preliminary issue (issue no. 4) relating to question of jurisdiction and held that the suit is not cognizable in the Civil Court and is cognizable in the Revenue Court, consequently direction was given that the plaint be returned to the plaintiff -opposite party no. 1 for filing before the competent court i.e. Revenue Court. The opposite party no. 1 feeling aggrieved against the order of the trial court dated 30.10.1981 filed appeal under Order 43 Rule -1(A) of the Code of Civil Procedure in the court of District Judge, Lucknow as Misc. Civil Appeal No. 27 of 1982, which was subsequently transferred to the court of Additional District Judge, Lucknow. The appeal was allowed by means of order dated 26.04.1985 and order of the learned trial court was set aside thereby holding that the civil court has jurisdiction to entertain and try the suit.;