Rajan Roy, J. - (1.) Heard Shri M.A. Khan, learned counsel for the petitioner, Shri Jagdish Parasad Maurya, learned Additional Chief Standing Counsel and Shri Dileep Pandey, learned Standing Counsel for the State and Shri Anil Tiwari, learned Senior Counsel appearing for the opposite parties no. 3 and 4.
(2.) This is a writ petition challenging the orders dated 25.08.2010 passed by the S.D.M., Malihabad, District Lucknow under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the Act, 1950), an order dated 11.03.2016 rejecting the petitioner's application under Order 9 Rule 13 C.P.C. for recall of the judgment dated 25.08.2010. Another order dated 14.06.2016 by which the Appeal of the petitioner has been dismissed, has also been challenged.
(3.) The facts of the case in brief are that there is a minzumla Gata bearing No. 310. It is not in dispute between the parties that at some stage considering the fact that there were three category of co-sharers in respect of the Gata, an entry in the revenue records was made to the effect 310/1, 310/2 and 310/3 without any such demarcation on the spot or in the Map, as, no partition had taken place by then. It is also not in dispute that a portion of Gata No. 310M was acquired for construction of Hardoi- Lucknow Road. According to the petitioner this was the land which was entered in the records as Gata No. 310/1, a fact which is not being denied by Shri Anil Tiwari, learned Senior Counsel appearing for the opposite parties no. 3 and 4. The opposite party no. 5-Waqf, Alal Aulad initiated proceedings for partition as it allegedly had 2 anna share in Gata No. 310/3, wherein, the petitioner was not arrayed as a defendant but the opposite parties no. 3 and 4 were so arrayed. The contention of Shri Khan is that the Suit was collusive. The Suit was decreed. Six years after the Decree, the petitioner, on coming to know that in fact while preparing the Kurra the land which was Gata No. 310/2 had been treated as Gata No. 310/3 and accordingly the land was partitioned by metes and bounds between the opposite parties no. 3, 4 and 5, filed an application under Order 9 Rule 13 C.P.C. for recall of the said judgment, which was rejected, whereupon, he filed an appeal which was also rejected. Thereafter, the petitioner filed a Suit for partition of Gata No. 310/2. In the said Suit an application for amendment was filed under Order 6 Rule 17, which, as informed by Shri Tiwari, was rejected on 21.01.2019 and a copy of the said order has also been placed before the Court. At this stage, Shri M.A. Khan, learned Senior Counsel for the petitioner states that the manner in which the S.D.M. has passed the order should be seen by the Court as, while deciding the amendment application he has dismissed the Suit also that too on the ground that after coming into force of the U.P. Revenue Code, 2006 the Suit for partition would lie under the Code of 2006 and not under Section 176 of Act, 1950, whereas, admittedly the Suit was filed in the year 2015 and the Code, 2006 came into force in February, 2016. As the Appeal against the said order is pending before the Additional Commissioner, Lucknow, therefore, this Court would not like to say anything on this aspect of the matter at this stage except that by the order dated 21.01.2019 passed by the S.D.M. in the Suit filed by the petitioner under Section 176 of the Act, 1950 bearing No. 1006 of 2015 not only the application for amendment has been rejected but the suit itself has also been rejected.;