RAJES KUMAR, J. - (1.) THE present writ petition is directed against the order of the Additional District Judge, Court No. 8, Gorakhpur, dated 8.9.2009, passed in Civil Revision No. 158 of 2008, filed against the order of the Civil Judge (Jr. Divn.), Gorakhpur, dated 10.1.1996.
(2.) THE brief facts of the case are that the plaintiff-respondents filed a Suit No. 94 of 1988 claiming relief for the decree of possession over the property in dispute. The defendant-petitioner filed a written statement in the year 1995. The trial court has framed 12 issues, out of which issue no. 8 was framed as a preliminary issue to the effect as to whether the court has jurisdiction to try the suit. When the trial court proceeded to decide issue no. 8, referred herein above, it was felt that it is necessary to decide whether the property in dispute is the land as defined under Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act (called the U.P.Z.A. & L.R. Act' only) because the same could not be decided by the civil court and could only be decided by the revenue court. The trial court, vide order dated 10.1.1996, instead of deciding issue no. 8, framed a fresh issue no. 13 to the effect that as to whether the land in suit is the land as defined under Section 3 (14) of the U.P.Z.A. & L.R. Act and referred the matter to the Assistant Collector, Gorakhpur, for giving the finding in this regard and it has been observed that issue no. 8 will be decided after receipt of finding on issue no. 13. Against the said order, the respondents filed revision on 9.11.2001 along with an application under Section 5 of the Limitation Act, which was registered as Case No. 499 of 2001. The case was transferred to the Additional District Judge, Court No. 11, Gorakhpur, for disposal. The petitioner filed a detailed objection against the application under Section 5 of the Limitation Act. The Additional District Judge allowed the application and condoned the delay, vide order dated 2.8.2008 and sent back the record to the District Judge, Gorakhpur, for hearing on admission. On receipt of the record, the case has been registered as Civil Revision No. 158 of 1988 in the court of District Judge, Gorakhpur, and the hearing for admission was fixed. The said revision has been admitted on 12.1.2009 after hearing both the parties. After admission the revision was listed for hearing on merit. The said revision was again transferred to the court of Additional District Judge, Gorakhpur, for hearing and disposal. The Additional District Judge has allowed the revision, vide impugned order dated 8.9.2009 and set aside the order dated 10.1.1996. The revisional court has held that the nature of the property was not land, inasmuch as the building of the factory has been constructed. It is further held that the Allahabad High Court in a proceeding relating to the eviction and recovery of arrears of land revenue has held that the property in dispute consists of mill and buildings and its nature is not land and, therefore, there was no question of referring the matter to the revenue court for decision. Being aggrieved by the order the petitioner filed the present writ petition.
(3.) HEARD Sri Arvind Srivastava, learned counsel for the petitioner and Sri A.K. Gupta, learned counsel, appearing on behalf of the respondents.;