DHARAMPAL SINGH - (1.) LEARNED senior counsel, assisted by Sri P.K.Dubey, learned counsel for petitioner and learned Standing Counsel on behalf of respondents no. 3 to 5 as also Sri D.D.Chauhan on behalf of respondent no. 2 Gaon Sabha.? Notice need not be issued to the respondent no. 1 in view of order being passed herein. By means of this writ petition, the petitioner seeks quashing of the order dated 17.10.2011 passed by the Assistant Collector Ist Class, Bhognipur, Kanpur Dehat in Suit No. 1/5/1999/2000, Raghuvanshi Singh vs. Mardan Singh as also the revisional order dated 06.07.2012 passed in Revision No. 94/2012, Mardan Singh vs. Raghuvansi Singh passed by the Additional Commissioner (Administration), Kanpur Division, Kanpur.
(2.) LEARNED counsel for petitioner has submitted that the respondent no. 1 had filed Writ Petition No. 4422 of 2006, Raghuvanshi Singh vs. Mardan Singh and others, assailing an order passed by the Sub Divisional Officer on an amendment application made by the respondent no. 1 herein for converting the suit filed under Section 209 of the U.P.Zamindari Abolition? and Land Reforms Act (for short 'the Act') to a suit under Section 229-B of the Act, wherein the writ Court clearly held that mere suit for declaration could not have been maintainable in case the relief for possession had already not been there and? directed that if the? relief for possession under Section 209 of the Act was barred by limitation then there was no question of a declaratory order under Section 229-B of the Act being passed by the trial court. Learned counsel for petitioner states that in view of aforesaid decision of the writ Court, the amendment application for adding parties to the suit could not have been allowed by the impugned order dated 17.10.2011.? He states that the revisional court has rejected the revision of the petitioner by the impugned order dated 06.07.2012 passed in Revision No. 94/2012, Mardan Singh vs. Raghuvansi Singh by committing the? same error. Having considered the submissions of learned counsel for the parties and perused the record, the relevant portion of the judgement dated 14.05.2010 passed in Writ Petition No. 4422 of 2006, Raghuvanshi Singh vs. Mardan Singh and others is quoted hereunder: "Accordingly, impugned order passed by Additional Commissioner is set aside. Amendment application filed by the plaintiff petitioner is allowed on payment of Rs.2000.00 as cost, which shall positively be paid by the next date. However, it is clarified that suit for bare declaration is not maintainable if some more relief can be asked for and has not been asked for. It is so provided by proviso to Section 34 of Specific Relief Act, which is quoted below: "Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." In the instant case, mere suit for declaration would not have been maintainable in case relief for possession had already not been there. However, relief of possession has been asked since inception of the suit. Accordingly, question of limitation will have to be seen in respect of relief of possession. If relief of possession is barred by time, then there is no question of granting any declaration. Trial court must specifically deal with this point. With the above directions and observations, writ petition is disposed of. Both the parties are directed to appear before the trial court/ S.D.O./ Assistant Collector on 14.07.2010." From a perusal of aforesaid decision of the Writ Court it appears that the writ Court had clearly held that the question of limitation will have to be seen in respect of relief of possession and in case the relief of possession is barred by time, there would be no question of grant of any declaration. The writ Court, therefore, directed the trial court to specifically deal with this point. Under the impugned orders, the amendment application under Order 6 Rule 17 C.P.C. dated 06.04.2010 filed by the respondent no. 1 has been allowed to add certain parties. The suit was originally filed under Section 209 of the Act.? By an earlier amendment application relief for declaration under Section 229-B of the Act was granted. The present amendment application has been allowed by the trial court and affirmed by the revisional court whereby certain persons have been made parties in view of the fact that the suit is now also for a declaration of rights.
(3.) IN so far as the direction issued by the Writ Court is concerned, that has not? yet been considered in as much as, if the relief under Section 209 of the Act is found to be barred by time and cannot be granted, then there is no question of any declaratory decree under Section 229-B of the Act? being granted. If it is found that relief of possession is within time, the trial court will be free to adjudicate with the declaration part of relief which has come in by virtue of the earlier amendment application. Therefore it cannot be held that by allowing the amendment application? to implead necessary parties the trial court has in any manner committed any error. No interference is required in the impugned orders. Learned counsel for the petitioner then submitted that the proceedings are pending since 1979 and more than 33 years have passed therefore, direction be issued to expedite hearing of the case. In so far as this relief claimed by the petitioner is concerned, no such order requires to be passed by this Court since there is no material available on record to indicate the pendency position of cases before the respondent no.5 and as to how many older cases than of the petitioner, are pending before him. Therefore, this writ petition is finally disposed of by providing that the petitioner can file an expedite application before the respondent no.5, for expeditious disposal of? his case by giving cogent reasons as to why his case should be given precedence over other older cases pending before respondent no.5.;