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Rajiv Prakash Tripathi v. Laxmikant Tripathi & Others - WRIT - B No. 17052 of 2004 [2006] RD-AH 1032 (16 January 2006)


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                                                                                       Court No.5.

Civil Misc. Writ Petition No. 17052 of 2004

Rajiv Prakash Tripathi.           Vs.        Laxmi Kant Tripathi and others..

Hon'ble Janardan Sahai, J.

         The dispute relates to plot nos. 1631, 1651 and 1668 of village Bara Sirohi, district Kanpur Nagar. A suit under Section 229-B and Section 176 of U.P.Z.A. &  L. R. Act was filed by the father of the petitioner against the defendant/respondents. The said suit was contested by the defendants/respondents and was dismissed by the trial court by order dated 30.11.1998. The petitioner preferred an appeal, which was dismissed by the Additional Commissioner by order dated 15.3.2002. A second appeal filed by the petitioner was also unsuccessful and was dismissed by the Board of Revenue by order dated 6.1.2004. The plaintiff had set up a pedigree in which Indrajeet is shown as common ancestor of the parties. He had two sons Nand Ram and Kedar Nath. The plaintiff's case is that Nand Ram and Kedar Nath acquired the plots in dispute by a patta from the zamindar, which was benami in favour of their respective sons Ram Bilas and Ram Ratan and that the plaintiff who is son of Sri Ram and grandson of Kedar Nath also has a share in the property. The suit was contested by the defendants/respondents. The pedigree was disputed and it was alleged that Nand Ram and Kedar Nath had other brothers also. According to the defendants/respondents the plaintiff's father had earlier filed Suit No. 107 of 1974-75 under Section 229-B/176 U.P.Z.A. & L. R. Act, which was dismissed in default on 28.4.1976 and the decree of that suit bars the present one.

                The trial court rejected the claim of the petitioner. It recorded the finding that the plaintiff failed to establish that the disputed plots were acquired by Nand Ram and Kedar Nath. No finding was however recorded by the trial court regarding the applicability of any bar to the maintainability of the present suit The appellate court however held that the bar of Order 9 Rule 9 C.P.C. was applicable in as much as the earlier Suit No. 107 of 1974-75 had been dismissed in default. The first appellate court also recorded a finding that the suit was dismissed by the trial court under Order 7 Rule 11 C.P.C. and that no explanation was offered for filing the suit after more than 20 years. The Board of Revenue has affirmed the finding.

         I have heard Sri Amit Saxena, learned counsel for the petitioner and Sarvsri S.L. Singh and Rajeev Mishra, learned counsel for the respondents.

          The finding recorded by the Additional Commissioner that the suit was barred by Order 9 Rule 9 C.P.C. does not appear to be correct. The copy of the order dismissing the Suit No. 107 of 1974-75 has been annexed to the counter affidavit as Annexure C.A.5. The order shows that it was dismissed in the absence for both the parties. Nothing has been brought on record to show that the defendants had appeared in the said suit. That apart the copy of the plaint in the present suit has been annexed as Annexure C.A.4. The plaint refers to the dismissal in default of the Suit No.107 of 1974-75. The further averments in the plaint are that a writing was given by Ram Bilas on 6.9.1975 and by Ram Ratan on 6.7.1977 admitting the co-tenancy rights of the plaintiff and that Ram Ratan was also party to a private partition in the year 1988. Thus the present suit was not brought entirely on the same cause of action as Suit No.107 of 1974-75. Whether the averments in the plaint regarding the admission of the plaintiff's co-tenancy or regarding partition are correct or not is a matter to be decided on facts but it is clear for the aforesaid reasons that the suit is not barred by Order 9 Rule 9 C.P.C. Adverting now to the other finding recorded by the Additional Commissioner  dismissing the suit under Order 7 Rule 11 C.P.C. it is manifestly clear from the order of the Trial court that this finding is altogether off the mark. The trial court has nowhere recorded any finding that the suit was barred by Order 7 Rule 11 C.P.C.  As regards the findings that the present suit was filed about more than 20 years after the dismissal of the first suit for which no explanation has been given it is enough to say that the appellate court did not record any finding that the present suit is barred by limitation. A general observation as made by the appellate court cannot be considered as a finding that the suit is barred by limitation. The order of the Additional Commissioner therefore cannot be sustained. The Board of Revenue has merely affirmed the finding of the Additional Commissioner without giving any additional reason. It is, therefore, clear that all the orders are liable to be set aside.


          Sri Rajeev Mishra, learned counsel for the respondents' states that issues had been framed in the suit. Be that as it may the order of the trial court reveals that it has not given its finding on the  issues. Moreover, there is no finding of the trial court on the main point raised by Sri S.L. Singh that the suit was barred by limitation. It is also clear that the trial court also did not decide the issues involved in the suit. For these reasons the order dated 30.11.1998 passed by the Sub Divisional Officer/Up Ziladhikari, Kanpur Nagar, the order dated 15.3.2002 passed by the Additional Commissioner, Kanpur Division, Kanpur and the order dated 6.1.2004 passed by the Board of Revenue, U.P., Allahabad are set aside. The case is remanded to the trial court for fresh decision after giving opportunity to the parties and in accordance with law. Petition allowed.




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