- (1.) KRISHNA Murari, J. These are two connected writ petitions challenging the common judgment of the Board of Revenue passed in two connected appeal Nos. 76/82-83 and 4/2005-06.
(2.) HEARD Sri Ram Niwas Singh, learned Counsel for the petitioners and Sri H. S. N. Tripathi and Sri S. K. Mishra for contesting respondents. Facts giving rise to the dispute are as under : Respondent No. 3 and one Smt. Lachi (now dead and represented by respondent No. 3) filed a suit under section 229-B of U. P. Zamindari Abolition and Land Reforms Act for declaration of co-tenancy rights in the land in dispute. The suit was contested by the predecessor-in-interest of the petitioners. Out of the 7 issues framed by Trial Court, issue No. 3 was whether the suit is barred by provisions of section 49 of U. P. Consolidation of Holdings Act. The said issue was decided as preliminary issue and was decided in affirmative by the Trial Court and the suit was held to be barred by section 49 of U. P. Consolidation of Holdings Act. Plaintiffs/contesting respondents went up in appeal. Commissioner Gorakhpur Division finding that case set up by the plaintiff was that land in dispute was acquired by common ancestor and as such Trial Court committed an illegality in holding the suit to be barred without giving any opportunity to adduce evidence in that regard allowed the appeal and remanded the case back to Trial Court to decide all the issues after opportunity of evidence to the parties. The petitioners filed second appeal before the Board of Revenue. Second appeal was dismissed in appeal on 10. 8. 2001. A restoration application was filed which was allowed on 17. 5. 2004 and order dated 10. 8. 2001 was set aside. It appears that during the period second appeal was lying dismissed in default, the proceedings before Trial Court was resumed and the order dated 17. 5. 2004 was not brought to the notice of Trial Court and suit was decreed ex-parte on 19. 6. 2004. On attaining knowledge of the ex-parte decree petitioners moved a restoration application dated 6. 7. 2004. Trial Court vide order dated 3. 8. 2004 deferred the disposal of the restoration application during the pendency of second appeal before Board of Revenue. Petitioners challenged the ex-parte decree dated 17. 6. 2004 in appeal before the Commissioner. A revision was also filed challenging the order dated 3. 8. 2004 passed by Trial Court deferring the hearing on the restoration application. Additional Commissioner vide common order dated 29. 12. 2005 dismissed the appeal and revision as not maintainable on account of pendency of recall application before Trial Court. Petitioners filed second appeal before the Board of Revenue. This second appeal was connected with the earlier second appeal No. 76 of 1982 and vide common judgment dated 29. 9. 2006 both the second appeals were dismissed. Aggrieved, the petitioners have approached this Court. A perusal of the aforesaid facts clearly goes to show that dispute between the parties has not been adjudicated on merits at any stage by arty of the Court. Initially, the suit was held to be barred by section 49 of the U. P. Consolidation of Holdings Act. However, said order was set aside in appeal by Additional Commissioner. Although, second appeal was restored but since the order was not brought to the notice of Trial Court the suit proceeded and was decreed ex-parte. Even though restoration application was pending yet at the instance of the parties the matter again traveled up to stage of second appeal.
(3.) BOARD of Revenue without considering the aforesaid aspect of the matter dismissed both the second appeal. The net result is that parties stand relegated back to Trial Court for decision of the application for recall of the ex-parte decree. The suit was filed in 1979 and even after 29 years there has been no adjudication of the dispute between the parties on merits. No useful purpose would be served in relegating the parties to Trial Court for decision on the restoration application as it may give rise to another round of litigation between the parties only on the question of recall of ex-parte decree. Considering the aforesaid fact and also the fact that recall application was filed by the petitioners on the ground that no notice was ever served upon them after the proceedings were resumed by the Trial Court on dismissal of second appeal in default it would be expedient and in the interest of justice that ex-parte judgment dated 19. 6. 2004 be recalled and Trial Court may be directed to decide the suit itself on merits. In view of the aforesaid discussions, the both the writ petitions stand allowed in part. The impugned judgment of Board of Revenue dated 29. 9. 2006 as will as that of the Trial Court dated 19. 6. 2004 is quashed. However, the prayer of certiorari to quash the order dated 30. 8. 1983 by Additional Commissioner is rejected. The Trial Court is directed to decide the suit itself expeditiously preferably within a period of six months from the date of production of certified copy of this order before him strictly in accordance with law and in the light of observations and directions contained in the order of the Additional Commissioner dated 30. 8. 1983 passed in Appeal No. 199-D-1982 (Tulsi v. Nageswar and others ). Petitions Partly Allowed. .;