- (1.) Heard.
(2.) This petition has been filed in the year 2019 challenging an order passed by the Sub Divisional Mankapur, District Gonda on 18.06.1995 on the ground that the Sub Divisional Magistrate does not have jurisdiction to declare the rights and interest of opposite party no.3 in respect of any bhumidhari land belonging to the petitioner. In this regard he has relied upon the decisions of this Court in Case:-Writ -C No.-39423 of 2006 (Satya Veer and Another vs. State of U.P. and others) decided on 26.03.2015; Case:-Writ -C No.-3853 of 2005 (Ramdhari vs. Addl. Commissioner(J) and others) decided on 29.11.2012 and the decision in the case of Chhote Lal vs. Ram Lakhan reported in [2004(97) RD 10 (H)]. It is also the contention of the learned counsel for the petitioner that he has never consented to the construction of house of opposite party no.3. In fact no house existed on the relevant date and the same has forcefully been constructed in the year 2018 and that he has never consented to the settlement of the land which belongs to him in favour of opposite party no.3. The other contention of the learned counsel for the petitioner is that consolidation operation took place during the year 1975-90 but during the said period the opposite party no.3 did not claim any right or interest in respect of the land in dispute, although, now he says that house was constructed before 30.06.1985.
(3.) The counsel for opposite parties have contended that the petitioner had also filed an application for recall of the order dated 18.06.1995 before the Sub Divisional Magistrate on 28.02.2018, therefore, this petition is not maintainable. As regards the contention of the counsel for the petitioner that opposite party no.3 did not fall in any of the preferential category as he was not a resident of the petitioner's village, it was contended by the counsel for the opposite parties that the opposite party no.3 was covered under Section 122-C(3)(iii) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950') as he was the resident of Gram Sabha albeit a different village and belongs to the OBC category. It was also their contention that for the purposes of settlement of the site of the house in favour of the opposite party no.3 thought he had to be a person referred to in sub section (3) of Section 122-C of the Act, 1950 the preference referred in this section was not applicable as only the person who had built the house would qualify, therefore, there is no question of any preference to others in this regard. The last argument of the opposite party appears to be germane and reasonable.;