Hon'ble Sabhajeet Yadav, J. - (1.) HEARD learned counsel for the petitioner and learned Counsel appearing for private respondents. By this petition, the petitioner has challenged the judgement and order dated 24.5.2006 passed by Additional Commissioner (Judicial) Varanasi Division, Varanasi in Revision No. 181 of 2003, Bagesar Tiwari Vs. Gopal Ji and others under Section 333 of U.P.Z.A. & L.R. Act. The aforesaid revision was filed against the order dated 25.8.2003 passed by Additional Sub Divisional Officer, Ghazipur in Case No. 530 of 1993, Bagesar Tiwari Vs. Bhadesar Tiwari, under Section 229 -B of U.P.Z.A. & L.R. Act, whereby the ex -parte order dated 3.12.1995 and pursuant decree dated 4.1.1996 passed in the said suit was set aside by restoring the suit to its original number and by transposing the petitioner Gopal Ji Tiwari in place of Sri Bhadesar Tiwari in the said suit.
(2.) THE brief facts leading to the case are that respondent no.4 Sri Bageshwar Tiwari S/o Sri Ram Sunder Tiwari instituted a suit being original suit no. 530 of 1993 under Section 229 -B of U.P.Z.A. & L.R. Act regarding the property situated in village Kulhariya, Pargana and Tehsil Jamania, District Ghazipur by claiming 1/4 share in the disputed property stating therein that the opposite party no. 4 have a good relation with Bhadesar Tiwari and Siddha Nath Tiwari, hence, they have permitted his name in 'Akarpatra -11' to the extent of 1/4 share in the disputed property, but the said entry had never been done in the consolidation records. However, it was further stated in the plaint that consolidation proceeding had ended by notification issued under Section 52 of U.P.C.H. Act. It is stated that in the said suit on 3.12.1995 in pursuance of alleged compromise dated 8.11.1995 the Up -Ziladhikari had passed decree on 4.1.1996. It is further stated in the writ petition that Bhadesar Tiwari had died and after his death the name of petitioner Gopal Ji Tiwari being the son of Bhadesar Tiwari and the successor of Siddha Nath Tiwari was mutated on 8.3.1997 in the revenue records under the guardianship of his real mother Rukmani Devi. A true copy of the extract of Khatauni of 1406 Fasli is on record as Annexure -3 -A to the writ petition. It is further stated that thereafter the petitioner came to know that the opposite party no.4 has manipulated the ex -parte order dated 3.12.1995 regarding the property of father of the petitioner, as such he filed an application for recall/restoration of the ex -parte order dated 3.12.1995 alongwith the application under Section 5 of the Limitation Act on 25.9.1997. However, said recall/restoration application was objected by opposite party no.4 on the ground that the petitioner is not the son of Bhadesar Tiwari and mother of petitioner Rukmani Devi is not wife of Late Bhadesar Tiwari. In support of his case through his natural guardian, his mother the petitioner has filed voluminous documents i.e. (i) Educational testimonials (ii) death certificate of Bhadesar Tiwari (iii) identity card of Rukmani Devi issued by Election Commission of India (iv) copy of registered marriage certificate of Rukmani Devi with Bhadesar Tiwari dated 23.6.1984 (v) copy of Kutumb Register which bears the name of petitioner's mother Rukmani Devi as the wife of Bhadesar Tiwari (vi) The certificate of Village Pradhan (vii) copy of Sulahnama dated 31.7.1998 in which the opposite party no.4 himself has admitted the mother of petitioner is the widow of Late Bhadesar Tiwari and (viii) the copy of revenue receipt by which the tax was paid. After going through the aforesaid documents the Up -Ziladhikari by order dated 25.8.2003 allowed the recall/restoration application filed by petitioner whereby ex -parte order dated 3.12.1995 and pursuant decree dated 4.1.1996 were set aside and the suit was restored to its original number. The aforesaid order is on record as Annexure -13 to the writ petition.
(3.) LEARNED counsel for the petitioner has submitted that from the perusal of aforesaid order dated 25.8.2003 passed by Additional Sub Divisional Officer Ghazipur, it is clear that on the basis of material placed by the petitioner before the court, the trial court has found that the petitioner is interested person for moving the said recall/restoration application. The trial court has also held that the compromise decree was passed without any issuance or service of notice/summon upon the defendant of said suit and alleged written statement filed by defendant of the suit was not verified by the defendants and the suit filed against Bhadesar Tiwari and Siddha Nath Tiwari was for a property which was more than to the existing property of Bhadesar Tiwari and Siddha Nath Tiwari and lastly the facts stated in notice under Section 80 C.P.C. is contrary to the facts stated in plaint about the area of land in dispute which was subject matter of suit. Thus, the trial court has found that the aforesaid compromise decree was obtained by the opposite party no.4 by playing fraud upon the court, as such the ex -parte decree has been set aside and the suit was restored to its original number. While allowing the delay condonation application moved in the said restoration application, the trial court has also held that since ex -parte order and decree was obtained by playing fraud upon the court and there would be no limitation for setting aside the decree obtained by playing fraud upon the court, therefore, finding sufficient ground for condoning delay in given facts and circumstances of the case, the trial court has also condoned the delay in moving said restoration application. For ready reference it would be appropriate to extract the findings of the trial court as under: ;