Arvind Kumar Tripathi (II), J. - (1.) HEARD learned counsel for the petitioners and learned standing counsel for the State. This writ petition has been filed by Fahmeed Raja and others for issuing a writ in the nature of certiorari to quash order dated 16.11.2011 passed by Board of Revenue, Uttar Pradesh, Lucknow and order dated 5.8.2003 passed by Sub -Divisional Magistrate, Tehsil -Utraula, District -Balrampur.
(2.) THE dispute involved in the writ petition is related to plot Nos. 364 area 0.55 decimal, 347 area 0.79 decimal, 349 Ka area 0.15 decimal and 349 Kha area 0.14 decimal situated in Village -Deoria, pargana and Tehsil -Utraula, District -Balrampur. One suit No. 204 of 1986, under Sections 229B/209 of U.P.Z.A. and L.R. Act. 1950 (later on referred as the Act) was filed by one Sardar Hussain son of Shahid Hussain alongwith 34 other plaintiffs including vendors of petitioners against Akaram Hussain son of Aqbal Hussain and 16 others defendants alongwith gaon sabha Amiya Deoria and State of U.P. This suit was decreed by Sub Divisional Magistrate -Utraula, then District -Gonda vide its order dated 31.10.86. Ajhar Abbas has filed an appeal against impugned order dated 31.10.1986 passed by Sub -Divisional Magistrate -Utraula which was dismissed by Additional Commissioner, Faizabad Region, Faizabad by order dated 26.4.1993. A revision was preferred before Board of Revenue, Uttar Pradesh, Allahabad Revision No. 49/1993 -94 in which Sabbar Abbas was also revisionist and at that time it was alleged that his age was 21 years looking into entry of khatauni 1384 -1389F Sabbar Abbas was wrongly shown as minor and had filed the revision though her natural guardian mother Noorjahan. This revision was dismissed by Board of Revenue on 13.7.2000 for want of prosecution. After a lapse of period about 16 years an application for recall of order dated 31.10.1986 was filed by Sarvar Hussain and others on 27.8.2002 alongwith application Under Section 5 of Indian Limitation Act supported with an affidavit. This application for recall was hotly contested and this recall application was allowed on 5.8.2003. Feeling aggrieved a Revision Nos. 268, 269 and 270 were filed before Additional Commissioner (Administration) Devi Patan Mandal, Gonda, which was allowed vide order dated 26.12.2005 and order dated 5.8.2003 was quashed. Sabbar Abbas filed Revision No. 42 of 2005 -06 before Board of Revenue which allowed the revision by its order dated 16.11.2011 which resulted in filing of this writ petition. Sabbar Abbas filed the counter -affidavit alleging that at the time of filing of the Suit No. 204/1986 under Sections 229B/209 of the Act, he was minor. Respondent Nos. 9 to 16 were deliberately arrayed as defendant who have no concern with the disputed land. They filed compromise in favour of plaintiffs. The actual owner of the land in dispute were never served any notice and plaintiffs have with connivance of defendant No. 1 obtained ex parte decree dated 31.10.1986. When he came to know of the ex parte order passed, he filed restoration application for setting aside order dated 31.10.1986 alongwith application for condonation of delay which was duly supported by an affidavit. That restoration application was allowed and the case was restored for proper adjudication on merit. Against this order dated 5.8.2003 Sardar Husain has preferred a revision which was allowed vide order dated 26.12.2005. A revision against that order was filed by Sabbar Husain before the Board of Revenue.
(3.) A perusal of the impugned order dated 16.11.2011 reveals that learned Member Judicial has discussed in detail the facts and irregularity found in conducting the case under Sections 229B/209 of the Act Suit No. 204/1986. It has been mentioned that at the time of filing of the suit under Sections 229B/209 of the Act, the applicants moving recall application was minor and there was no proper compliance Order XXXII, Rule 3, C.P.C.;