Pankaj Mithal - (1.) -I have heard Sri M. D. Singh 'Shekhar', senior advocate assisted by Sri D. K. Tripathi, learned counsel for the plaintiff/appellant and Sri Sankatha Rai, senior advocate assisted by Sri V. K. Rai for the respondents. Both parties agree for the final disposal of the appeal at this very stage of admission as only a legal point bereft of factual dispute is required to be considered.
(2.) THE dispute is in connection with Arazi No. 73 (old), new number 150 area 0.112 situate in Mauja Chaurikhas, Tehsil Asnaon, district Sant Ravidas Nagar, Bhadohi. It is said that Bhagwan Singh and Kuber Singh donated the aforesaid Araji sometime in the year 1906-07 to the plaintiff's grandfather Rameshwar Pandey. The area was brought under consolidation vide notification dated 11.7.1964. During the consolidation proceedings the objections relating to the aforesaid land came to be decided by the Consolidation Officer vide order dated 29.12.1966. Against this order an appeal was preferred by one Adhya Prasad and another before the Settlement Officer, Consolidation. The appeal was allowed and the order of the Consolidation Officer dated 29.12.1966 was set aside. Against this order the plaintiff's father preferred a revision under Section 48 of the Consolidation of Holdings Act. The revision was dismissed by the Deputy Director of Consolidation, Varanasi Camp, Varanasi on 11.12.1975. Then he preferred a Writ Petition No. 722 of 1976. The writ petition was dismissed on 21.8.2006 and both the orders of Deputy Director of Consolidation dated 11.12.75 and that of the Settlement Officer, Consolidation dated 15.6.68 were confirmed. The plaintiff's father thereupon preferred Special Leave Petition No. 21210 of 2006 but the same was also dismissed. Thus, when plaintiff's father have lost the battle right up to the Supreme Court, the plaintiff Rajnath Pandey instituted the present Original Suit No. 185/07, Rajnath Pandey v. Jawala Prasad and 16 others with his father as proforma defendant No. 18 praying for the following reliefs : ...[VERNACULAR TEXT OMMITED]... Undisputedly, the plaintiff is claiming rights in the suit property through his father Sharda Prasad who had contested the previous proceedings right up to the Supreme Court. The aforesaid prayers made in the plaint, in short, are to the effect that it be declared that all the judgments and orders which have been passed in an unlawful manner by any court of law whether of Consolidation or by the other courts in respect of the aforesaid Arazi No. 73 (old) new number 150 area 0.112 situate in Mauja Chauri Khas, Tehsil Asnaon, district Sant Ravidas Nagar Bhadohi, are not binding upon the plaintiff and are invalid which have no effect upon the rights of the plaintiff in the aforesaid property and further that the defendants be restrained permanently from interfering in rights over the same. The second relief is dependant upon the first one and cannot be allowed independently. The basic ground for such relief being that the previous judgments and orders are illegal and have been passed in the absence of the plaintiff.
(3.) ON the said suit being instituted the defendants instead of submitting written statement moved an application 28-Ga raising a preliminary objection that such a suit is not maintainable under law and is an abuse of the process and, therefore, it be dismissed. The application was allowed vide order dated 28.2.2008 passed by Civil Judge (Junior Division) and the suit was dismissed as not maintainable as the civil court was not possessed of the jurisdiction to grant the relief claimed in the suit. Against the said judgment and order the plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure. The appeal was accompanied by a decree prepared by the trial court in the suit. The appellate court dismissed the appeal holding the suit for the relief claimed in the plaint as not maintainable. It was further held that the trial court committed no error of law in holding that it had no jurisdiction to declare the decisions of the superior authorities to be illegal and invalid. However, while dismissing the appeal the lower appellate court further held that the order dismissing the suit is not a decree under Section 2 (2) of the Code of Civil Procedure, and therefore, the appeal is not even maintainable. It is against aforesaid judgment and order of the court below that the plaintiff has come up in this second appeal.;