KRISHNA MURARI, J. - (1.) HEARD Sri D.S.M. Tripathi, learned Counsel appearing for petitioners, learned Standing Counsel appearing for respondents No. 2 and 3 and Sri V.K. Singh appearing for Gaon Sabha respondent No. 4.
(2.) DISPUTE relates to Plot No. 193, area 1.67 acres situate in village Babhiaon, Pargana Katehar, District Varanasi, Predecessor-in-interest of petitioners filed a suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act (for short the "Act") seeking declaration that they are Bhumidhars in possession of the land in dispute. The said suit was contested by defendants Gaon Sabha Babhiaon and State of U.P. A written statement was filed on behalf of Gaon Sabha admitting the claim of petitioner. District Government Counsel (Revenue) appearing on behalf of State of U.P. took time twice to file written statement but the same was not filed. The suit came to be decreed vide judgment and decree dated 31.7.163. Subsequently, Gaon Sabha filed Suit No. 190 of 1964 for cancellation of judgment and decree dated 31.7.1963 on the ground that decree was obtained by collusion and fraud, trial Court vide judgment and decree dated 17.7.1965 dismissed the suit holding that decree is valid as the plaintiff failed to prove any fraud in obtaining decree. Judgment and decree dated 31.7.1963 decreeing the suit of petitioners as well as 17.7.1965 dismissing the suit filed by Gaon Sabha for cancellation of decree became final as it was not challenged. After lapse of about 27 years, respondent No. 4 Gaon Sabha filed an application dated 13.3.1990 to recall the judgment and decree dated 31.7.1963 on the ground that property in dispute belong to Gaon Sabha and decree was passed ex parte without hearing, trial Court vide order dated 5.6.1992 allowed the application and recalled the judgment and decree dated 31.7.1963. Petitioners went up in revision. Revisional Court vide order dated 7.3.1965 made a recommendation to the Board of Revenue to allow the revision and set aside the order of trial Court dated 5.6.1992 and to dismiss the restoration application filed by Gaon Sabha. Board of Revenue vide order dated 29.3.1996 rejected the reference and confirmed the order dated 5.6.1992 passed by trial Court and directed the case to be decided afresh on merits. It has been urged by learned Counsel for petitioners that Gaon Sabha as well as State had full knowledge about the suit filed by petitioners as they had appeared in proceedings and written statement was also filed on behalf of Gaon Sabha and suit for cancellation of decree filed by Gaon Saba was also dismissed and thus, there was no justification to file restoration application after lapse of 27 years. It has further been urged that trial Court as well as Board of Revenue have wrongly and illegally allowed the highly time barred restoration application filed by Gaon Sabha.
(3.) IN reply, learned Standing Counsel and Sri V.K. Singh appearing for respondents have tried to justify the impugned order. I have considered the arguments advanced on behalf of the learned Counsel for the parties and perused the record.;