- (1.) HEARD Sri Kamal Kishor Mishra, learned counsel for petitioner as also learned Standing Counsel on behalf of respondents no. 1 to 5 and Sri H.P.Misra, who has put in appearance by caveat on behalf of respondents no. 6 & 7. Since all the respondents are represented, the case is being decided today itself. This writ petition is directed against the order dated 24.07.2012 passed by the Board of Revenue in Revision NO. 140+141/LR/2011-12( Smt. Jurawati and others vs. Ram Daras) as also the order dated 22.09.2011 passed by the Commissioner, Gorakhpur division Gorakhpur in Revision No. 420/244/250/G-2011 (Ram Daras vs. Smt. Jurawati and others).
(2.) LEARNED counsel for petitioner has submitted that the respondent no. 7 Ramprit in proceedings under Section 34 of the U.P.Land Revenue Act (for short 'the Act') was recorded over the land in question. However, an application made by the petitioner for recall/restoration of the order along with an application under Section 5 of the Limitation Act after 5 years was allowed by the Tehsildar by the order dated 29.10.2010 and earlier order dated 13.10.2006 passed in favour of the respondent no. 7 was set aside and notices were issued. According to learned counsel, against the said order dated 29.10.2010, the respondent no. 6 Ramdaras filed Revision No. 420/244/250/G-2011 (Ram Daras vs. Smt. Jurawati and others) which revision was allowed by the order dated 22.09.2011 passed by the Commissioner, Gorakhpur division Gorakhpur for the reason that said order dated 29.10.2010 passed by Tehsildar on the restoration application of the petitioner was an exparte order without issuing notice although the restoration application was filed 5 years beyond time. According to learned counsel, against the order dated 22.09.2011 passed by the Commissioner, Gorakhpur division Gorakhpur in Revision No. 420/244/250/G-2011 (Ram Daras vs. Smt. Jurawati and others), petitioner filed Revision NO. 140+141/LR/2011-12 (Smt. Jurawati and others vs. Ram Daras), which revision has been rejected by the Board of Revenue by the order dated 24.07.2012.
(3.) LEARNED counsel for petitioner states that the proceedings under Section 34 of the Act were decided exparte against the petitioner and therefore, the Tehsildar had rightly allowed petitioner's restoration application and hence, the impugned revisional orders whereby matter has been remanded back to the Tehsildar for deciding on merit after notice to the parties, are illegal. Having heard learned counsel for the parties and perused the record, it appears that the name of respondent no. 7 was recorded in revenue records in proceedings under Section 34 of the Act. The petitioner appears to have filed restoration application after 5 years. That restoration application was allowed by the Tehsildar exparte without issuing notice to the respondents where against revision filed by the respondents has been allowed by the Commissioner Gorakhpur Division Gorakhpur and the order of Tehsildar has been set aside with a direction to the Tehsildar to decide the matter after giving opportunity to the parties. The revision filed there against by the petitioner has also been dismissed by the Board of Revenue on the same ground. As such, the finding recorded therein is that the order of Tehsildar was exparte without issuing notice to the respondents whose names were entered in the revenue records. No error can be found in the impugned revisional orders passed by the Commissisoner as well as the Borad of Revenue whereby they have recalled the exparte order passed by the Tehsildar and remanded the matter back to Tehsildar for deciding after affording opportunity to the parties.;