Court dismissed this writ petition challenging orders dismissing the petitioner's suit and revisions under U.P. Zamindari Abolition and Land Reforms Act. The court held that filing a withdrawal application without liberty precludes maintaining a second suit on the same relief.
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Court No. - 7
Case :- WRIT - B No. - 942 of 2021
Petitioner :- Dildar Husain Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Surendra Pal Counsel for Respondent :- C.S.C.
Hon'ble Rajeev Misra,J.
Heard Mr. S.P. Gangwar, learned counsel for petitioner, who is available on audio/video link. Learned Standing Counsel representing respondents 1 to 5 is also available.
Dildar Husain writ petitioner has filed present writ petition challenging order dated 21.1.2021 passed by respondent 2 Board of Revenue, U.P. at Allahabad (Annexure-9 to the writ petition), order dated 15.2.1999 passed by respondent 4 SubDivisional Officer (Annexure-4 to the writ petition) and order dated 27.7.2015 passed by respondent 3 Additional Commissioner (Administration), Bareilly Division, Bareilly (Annexure-3 to the writ petition).
Record shows that petitioner instituted a suit under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (In short 'Act') in respect of survey plot nos. 187A, 187B and 191. Same were registered as suit nos.187A, 187B and 191 (Dildar Husain vs. Nafees Ahmad), which came to be dismissed by respondent 4 vide order dated 15.2.1999. Feeling aggrieved by order dated 15.12.1999, petitioner preferred a revision before Additional Commissioner, Bareilly Division, Bareilly. Aforesaid revision came to be dismissed by revisional court vide order dated 27.7.2015. Thereafter petitioner filed second revision before Board of Revenue which also came to be dismissed vide order dated 21.1.2021.
The suit filed by petitioner was dismissed by respondent 4 on the ground that petitioner had earlier instituted a bearing suit no.6/54, under Section 229B in respect of same cause of action. However, same was got dismissed as withdrawn vide order dated 29.4.1997 without obtaining leave of court to file a fresh suit. Apart from above respondent 4 came to the conclusion that adverse possession of petitioner over the land in dispute is not proved from the record. Respondent 3 Additional Commissioner (Administration), Bareilly Division, Bareilly concurred with the view taken by Sub-Divisional Officer. The revisional court further records that the compromise, if any entered between the parties in the earlier suit filed by petitioner,
can be of no help as the said compromise was not acted upon in the earlier suit. Consequently, revisional court held that revision had no force so filed and, thus, same was dismissed.
Learned counsel for petitioner by placing reliance upon compromise arrived at between the parties in earlier suit filed by the petitioner over the land in dispute contends that declaration as prayed for by petitioner over land in dispute on the basis of adverse possession was liable to be accepted.
Argument raised is wholly misconceived. Admittedly, since the compromise was filed in earlier suit, relief could have been claimed in earlier suit itself. Secondly, irrespective of above, petitioner himself filed an application for withdrawal of earlier suit without liberty to institute a fresh suit. Second suit in respect of same relief can be maintained provided earlier suit has been dismissed as withdrawn with liberty to file a fresh suit. In case of no liberty of the court was obtained, second suit filed by petitioner could not be maintainable. Both the courts below have ultimately come to the conclusion that the plaintiffpetitioner has not been able to prove his rights over the land in dispute.
In view of above, I do not find any infirmity or illegality in the orders passed by respondents 2, 3 & 4.
Writ Petition lacks merit and it is liable to be dismissed. It is accordingly, dismissed.
Order Date :- 9.7.2021
piyush
2 issues framed by the court
Whether a second suit on the same cause of action is maintainable when the first suit was dismissed as withdrawn without leave of court.
Whether a settlement in a withdrawn suit can be relied upon in a subsequent suit filed without court permission.
1 provisions across 1 enactments
Dildar Husain
State Of U.P.
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
