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Gorakh v. Board Of Revenue U.P. & Others - WRIT - B No. - 59950 of 2007 [2007] RD-AH 18663 (6 December 2007)

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Civil Misc. Writ Petition No. 59950 of 2007



Board of Revenue, U. P. at Allahabad and others

Hon'ble Krishna Murari, J.

Heard Sri Manish Dev Singh, learned counsel for the petitioner and Sri Vivekanand Yadav appearing for contesting respondents.

Facts, giving rise to the dispute, are as under.

Suit filed by respondent no. 4 under Section 229-B read with Section 176 of the U. P. Zamindari Abolition & Land Reforms Act (for short the ''Act') was decreed by the trial court on the basis of alleged compromise between the parties and preliminary decree was prepared on 6.12.1989. Respondent no. 7, who is real brother of present petitioner, moved an application dated 19.1.1990 to recall the decree passed on the basis of compromise on the ground that he was not signatory to the compromise. During the pendency of the restoration application before the trial court, respondent no. 7 filed revision challenging the decree passed by the trial court. Revisional court vide order dated 19.1.1998 dismissed the revision. However, restoration application filed by respondent no. 5 was allowed by the trial court vide order dated 30.6.1998 and preliminary decree was directed to be prepared afresh after hearing the parties on merits. Order dated 30.6.1998 passed by the trial court was put to challenge by the petitioner before the revisional court. Vide order dated 12.3.2003 revisional court dismissed the revision. Thereafter, petitioner filed an application seeking review of the order dated 12.3.2004 which was allowed on 30.6.2004. Thereafter, respondent no. 5 moved an application dated 16.7.2004 to recall the order dated 30.6.2004 on the ground that it was passed exparte without any opportunity. Revisional court vide order dated 7.3.2005 allowed the said application and the order dated 30.6.2004 passed on the review application filed by the petitioner was recalled. Revisional court after hearing both the parties dismissed the review application vide order dated 23.8.2005. Order passed by the revisional court was challenged by the petitioner before the Board of Revenue by filing another revision. Board of Revenue vide order dated 2.11.2007 dismissed the same on the ground that second revision by the same party was not maintainable in view of the amendment in Section 333 of the Act vide Act no. XX of 1997 which came into force with effect from 16.8.1997.

In view of the amendment made in Section 333 of the Act, second revision by the same party is not maintainable and there is no infirmity in the impugned order passed by the Board of Revenue dismissing the revision filed by the petitioner as not maintainable.

It has been vehemently contended by the learned counsel for the petitioner that once the revision filed by respondent no. 7 against the preliminary decree dated 6.12.1989 was dismissed by the revisional court, entire proceedings thereafter before the trial court as well as revisional court are patently without jurisdiction. Argument is totally misconceived. Revision was filed by respondent no. 7 challenging the preliminary decree dated 6.12.1989 passed by the trial court on merits whereas respondent no. 5 had moved recall application before the trial court on the ground that decree dated 6.12.1989 was an exparte decree. Trial court finding that compromise was not signed by all the parties and as such the decree on the basis of the said compromise was not valid decree recalled the same. Subsequent proceedings of revision were taken by the petitioner challenging the said order. In view of the fact that preliminary decree dated 6.12.1989 was recalled by the trial court on the ground that compromise on the basis of which said decree was passed was not valid and proper. Mere fact that revision filed by respondent no. 7 was dismissed would have no effect on the recall application filed by respondent no. 5 which was on entirely different ground and the order passed on his application cannot be termed without jurisdiction for the reason that revision against the said decree has been dismissed.

In view of the aforesaid, there appears to be no force in the argument advanced by the learned counsel for the petitioner.

Writ petition accordingly fails and is dismissed in limine.



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