Siddhartha Varma, J. - (1.) This Second Appeal has been filed against the judgment and decree of the First Appellate Court by which the First Appeal filed by the respondent nos.1, 2, 3, 4, 5, 6, 7, 8/1 and 8/2 was allowed and the judgment and decree of the Trial Court passed in Suit No.282 of 2000 was set-aside and the suit was dismissed in toto after holding that the Civil Court had no right to entertain the suit.
(2.) The brief facts of the case are that when the father of the plaintiffs-appellant nos.1, 2 and 3 late Lalsa began to sell off certain properties beyond his share then the plaintiffs-appellants filed a suit being Original Suit No.282 of 2000. The plaint allegations were that the plaintiffs who were the sons of Lalsa were born prior to abolition of zamindari and, therefore, they had 3/4th share in the total property owned by their father and since it was alleged that the father had only 1/4th share in the property, the other brothers namely respondent nos.3, 4, 5, 6 and 7 were, though the sons of their father Lalsa, (from a different mother) could claim only the share of their father. The name of the mother of the plaintiffs was Reshma whereas the name of the mother of respondent nos.3 to 7 was Alaina. The further case taken by the plaintiffs in the plaint was that when their father had tried to sell off certain properties, then they had filed a suit in the Court of Munsif, Muhammadabad, Azamgarh being Suit No.630 of 1993 which was decreed on 21.1.1995 and it was held therein that the plaintiffs were the share-holders of the 3/4 of the entire property. The father of the plaintiffs had tried to get this decree recalled but the recall application under Order IX Rule 13 C.P.C. was dismissed on 11.7.2001 on the ground that it was barred by limitation. The appeal filed against the order dated 11.7.2001 was also dismissed on 10.8.2001. The contesting respondents filed a writ petition being Writ Petition No.35724 of 2001 against the judgment dated 10.8.2001 but this writ petition was also dismissed on 9.9.2003 by the High Court and since the contesting respondents had not challenged the judgment and order of the writ Court dated 9.9.2003, the decree passed in the Suit on 21.1.1995 continued. The further case taken in the plaint was that the plaintiffs were living, along with their father, in a joint hindu family and when zamindari was abolished in the State of Uttar Pradesh, since the plaintiffs had already taken birth before the abolition of zamindari, they became owners of 3/4th share of the property in dispute. The suit essentially was, therefore, filed with a prayer that the sale deeds dated 18.4.2000, 22.4.2000 and 24.4.2000 executed by the father of the plaintiffs in excess of his share be set-aside and the plaintiffs be allowed to continue to enjoy the 3/4th share of the property in question and that their possession be not disturbed. The defendants i.e. the purchasers of the properties and the father of the plaintiffs contested the suit and stated that the written statement which had been filed in the earlier suit which was alleged to have been filed by the father was in fact never filed by the father and, therefore, there was no admission in the Suit No.630 of 1993 of the respondent-father. The further case taken in the written statement by the father was that since the decree was an ex-parte one, it was not binding either on him or on his purchasers.
(3.) The defendants' case was that when the plaintiffs were not entered in the revenue records at the time when zamindari was abolished, it was essential that they took a declaration of their rights under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1951. It was also the case of the defendants that the plaintiffs had not objected to the entry of the name of the father namely Lalsa in the consolidation operation also and, therefore, the suit was also barred by the provisions of section 49 of the U.P. Consolidation of Holdings Act. The suit was, after striking of issues, decreed on 31.8.2012 and thereafter the respondents who were the buyers of the property along with the Lalsa filed a First Appeal being First Appeal No.203 of 2012. The First Appellate Court upon finding that the father alone was entered at the time when zamindari was abolished, the plaintiffs ought to have filed a suit for declaration before getting the sale deeds cancelled. The appellants also took a ground in the appeal that since the plaintiffs were not entered and since they had not filed any suit for declaration, the suit itself was not maintainable before the Civil Court. The First Appellate Court agreed with the grounds taken by the defendants and allowed the First Appeal and held that the Trial Court had exceeded its jurisdiction in entertaining the suit and after allowing the First Appeal dismissed the suit.;