Manoj Kumar Gupta, J. - (1.) Heard learned counsel for the petitioner and learned counsel appearing on behalf of respondent no. 5. The pleadings have been exchanged between the parties and with consent of learned counsel for the parties, the matter is heard finally.
(2.) The petitioner has instituted a suit under Section 229B of U.P.Z.A. and L.R. Act, 1950 seeking declaration as regards bhumidhari rights over the suit land. The case of the petitioner was that Archs Weld Stephen Richard, father of respondent no. 5 recorded tenure holder had taken loan of Rs. 3,000/- from her and has executed a deed in her favour on 13.11.1973 in order to secure the loan. He had also delivered possession to the petitioner. Accordingly, the petitioner claimed the decree for declaration of bhumidhari rights in the suit land. The trial court decreed the suit on 2.2.1984 placing reliance on an Iqbaldawa dated 15.2.1983 allegedly containing signatures of respondent no. 5. Respondent no. 5 subsequently filed an application dated 6.3.1984 under Order 9, Rule 13 readwith Section 151 C.P.C. for setting aside the judgment dated 2.2.1984. The specific case of the fifth respondent was that he had never been served with the summons in the suit nor he entered into any compromise. He also denied having filed any Iqbaldawa dated 15.2.1983. The restoration application was dismissed under Order 9, Rule 2 C.P.C. by order dated 18.02.1986 as respondent no. 5 failed to take steps to serve the opposite parties. On 27.7.1991 an application was filed for recall of the order dated 18.2.1986. The trial court rejected the restoration application holding that there is no proper explanation for the delay in filing the application. Aggrieved by the said order, respondent no. 5 filed an appeal before the Commissioner. The appeal was allowed by order dated 30 January, 2012 and the suit was restored to its original number. Aggrieved by the said order, the petitioner filed a revision before the trial court, which has been dismissed by impugned order dated 18.4.2012. Hence, the instant writ petition.
(3.) Learned counsel for the petitioner submitted that in the impugned order, the courts below have not recorded proper findings regarding sufficiency of cause in not filing the restoration application in time. It is further submitted that the suit was decreed on the basis of the Iqbaldawa and consequently, upon rejection of the restoration application, no appeal was maintainable.;