- (1.) THE writ petition is directed against the order dated 17th January, 2008 passed by the Civil Judge (Junior Division) Jaunpur rejecting application no.50-C of petitioner-Manoj Kumar raising a preliminary objection regarding maintainability of Original Suit No.436 of 2004 (Indu Devi Vs. Manoj Kumar) on the ground that suit is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "1950 Act") and the revisional order dated 26th May, 2008 passed by District Judge, Jaunpur dismissing Revision No.9 of 2008 of the petitioner. THE Facts giving rise to the dispute in the present writ petition may be stated as under.
(2.) ONE Fateh Bahadur Singh, husband of Smt. Indu Devi (respondent No.3) possessed some movable and immovable property and died on 12th February, 2002. The petitioner is the son of Sri Amar Bahadur Singh, brother of Fateh Bahadur Singh. He claimed that Fateh Bahadur Singh had executed a Will 7th February, 2002, though it was unregistered, and on the basis thereof got his name mutated in respect to the immovable property of Late Fateh Bahadur Singh. Respondent No.3 filed Original Suit No.436 of 2004 for cancellation of unregistered Will dated 7th February, 2002 in respect to the disputed property, as detailed at the bottom of the plaint, which reads as under: ...[VERNACULAR TEXT OMMITED]... The petitioner-defendant put in appearance in the aforesaid suit and filed an application dated 27th March, 2006 raising a preliminary objection that suit is without jurisdiction and liable to be dismissed as not maintainable being barred by Section 331 of 1950 Act. It is stated that property in dispute, referred to in the suit, is all such land as is governed by 1950 Act and therefore it is barred by Section 331 of 1950 Act. It is contended that plaintiff-respondent No.3 had no right to file the said suit unless seeks a declaration from the Revenue Court regarding her status as Bhumidhar of the land in dispute. It is this application, which has been rejected by both the Courts below, whereagainst this writ petition has been filed. Sri Namwar Singh, learned counsel for the petitioner submitted that name of the petitioner was already mutated in revenue records in place of Late Fateh Bahadur Singh and he was recorded as Bhumidhar. The petitioner has also possession over the property of Late Fateh Bahadur Singh. In the circumstances respondent No.3 ought to have sought a declaration by filing a suit in the Revenue Court under Section 229-B of 1950 Act and suit filed in Civil Court under Section 9 C.P.C. was barred by Section 331 of 1950 Act. He placed reliance on the Apex Court decision in Gorakh Nath Dube Vs. Hari Narain Singh & Ors. 1973 R.D. 423 (SC), a Full Bench judgment of this Court in Ram Padarath & Ors. Vs. Second Add. D.J., Sultanpur 1989 R.D. 21 and a Single Judge decision in Bhurey Lal Vs. District Judge, Budaun & Ors. 1997 (88) RD 149.
(3.) PER contra, Sri U.B. Singh, learned counsel appearing for the respondent No.3 contended that the suit was filed for cancellation of unregistered Will dated 7th February, 2002 and for declaration of property in dispute as that of the plaintiff on the ground that it was a forged and fictitious document prepared fraudulently and illegally hence the suit filed before Civil Court is not barred. He placed reliance on Apex Court decision in Bismillah Vs. Janeshwar Prasad 1990 SCC (1) 207 and a Single Judge decision in Barkhu & Ors Vs. Vth Additional District Judge, Basti 2004(97) R.D. 168. I have heard Sri Namwar Singh for the petitioner, Sri U.B. Singh, Advocate for the respondent No.3 at length and has perused the record as also the authorities cited at the Bar.;