Allowed

Raghuraj Singh v. Sub Divisional Officer and 7 Others

Allahabad HC4 Oct 2023WRIC/7407/2023

Case brief

AI extract

What is this about?

This court merged two writ petitions arising from a partition suit. It held that since the amendment application allowing 'Gram Panchayat' in place of 'Gram Sabha' was allowed and no interim order had been passed in the pending writ petition, there was no occasion to abate the suit proceedings. The court set aside the abatement order and remanded the suit to be disposed of expeditiously.

What did the court decide?

The order abating the partition suit proceedings dated 20.01.2023 was set aside. The matter was remanded to the Sub-Divisional Officer to decide the suit within six months.

Raghuraj Singh Vs Sub Divisional Officer and 7 Others — Partition | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:191024

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Court No. - 51

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Case :- WRIT - C No. - 7407 of 2023

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Petitioner :- Raghuraj Singh Respondent :- Sub Divisional Officer And 7 Others Counsel for Petitioner :- Yogendra Singh Bohra Counsel for Respondent :- C.S.C.,Sudhir Kumar Pandey,Sunil Kumar Singh

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along with

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Case :- WRIT - C No. - 36194 of 2022

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Petitioner :- Mukesh Kumar Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Sudhir Kumar Pandey Counsel for Respondent :- C.S.C.,Kuldeep Kumar,Sunil Kumar Singh

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Hon'ble Chandra Kumar Rai,J.

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1.Heard Mr. Y. S. Bohra, learned Counsel for the petitioner, Mr. Sudhir Kumar Pandey, learned Counsel for respondent No.4, Mr. Sunil Kumar Singh, learned Counsel for respondent No.8/Gram Panchayat and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents in Writ-C No.7407 of 2023.

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Heard Mr. Sudhir Kumar Pandey, learned Counsel for the petitioner, Mr. Kuldeep Kumar for respondent Nos.5 and 7, Mr. Y. S. Bohra, learned Counsel for respondent No.6, Mr. learned Sunil Kumar Singh, Counsel for respondent No.4 and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-

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respondents in Writ-C No.36194 of 2022.

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The above-mentioned Writ-C No.7407 of 2023 as well as WritC No.36194 of 2022 relates to same controversy arising out of partition suit No.T202011170402413 as such both the petition are being heard and disposed of together without inviting counter affidavit.

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Brief facts of the case are that plaintiff Shiv Shankar filed a suit for partition under Section-116 of U.P. Revenue Code, 2006 impleading Raghuraj Singh, Mahipal Singh, Mukesh Kumar, Ramesh, Smt. Lajjawati, Nishant Bhati and Gram Sabha as defendants in respect to plot Nos.285 and 320 total area 4.9330 hectare. The aforementioned suit was registered as Case No.T202011170402413 before Sub Divisional officer, Sikandrabad, Bulandshar. Defendants in the aforementioned suit filed their respective written statements. Defendant No.4 Mukesh Kumar filed an application dated 08.11.2020 under Order 7 Rule 11 read with Section 151 of Civil Procedure Code hereinafter will referred as C.P.C. alleging that defendant No.6 Nishant Bhati is minor and there is no natural guardian of the minor as such suit is liable to be dismissed. The Second ground taken in the application dated 08.11.2020 was that goan sabha has been impleaded in the place of Gram Panchayat as such suit cannot proceeded. PlaintiffShiv Shanker filed an application dated 14.12.2020 under Order 6 Rule 17 of C.P.C. with the prayer to amend the plaint by mentioning Gram panchayat in the place of Gram Sabha. PlaintiffShiv Shanker also filed reply to the application dated 18.11.2020 stating that minor Nishant Bhati has been impleaded through his real grand mother Lajjawati as guardian as such application dated 18.11.2020 filed by defendant No.4 is liable to be rejected. Sub-

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Divisional Officer vide order dated 11.02.2021 rejected the application dated 18.11.2020 filed under Order 7 Rule 11 of C.P.C. by defendant No.4 Mukesh Kumar accordingly defendant No.4 Mukesh Kumar find a revison being revision No.C202111000000472 of 2021 which was dismissed by the Additional Commissioner vide order dated 31.10.2022. Hence writ C No.36194 of 2022 has been filed by defendant No.4 Mukesh Kumar before this Court challenging the impugned orders dated 11.02.2021 and 31.10.2022 in which no effective order has been passed till date rather the case was adjourned on the request of counsel for petitioner or due to illness slip of counsel for petitioner.

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Defendant No.4 Mukesh Kumar filed an application dated 06.01.2023 before the Sub Divisional Officer that Writ-C No.36194 of 2022 is pending before Hon'ble High Court as such proceeding of partition suit should be abated. Defendant No.1 Raghuraj Singh filed objection dated 13.01.2023 against the application dated 06.01.2023 stating that no interim order has been passed in Writ C No.36194 of 2022 as such proceeding of partition suit cannot be stayed or abated. Sub Divisional officer vide order dated 20.1.2023 abated the proceeding of partition suit till the decision of writ C No.36194 of 2022 hence writ C No.7407 of 2023 on behalf of defendant No.1 Raghuraj Singh.

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Preliminary decree has been passed in the aforementioned partition suit on 09.07.2021.

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Mr. Y.S. Bohra, Counsel for the petitioner in respect to the Writ Petition No. 7407 of 2022 submitted that suit for partition under Section 116 of U.P. Revenue Code, 2006 was filed in respect to plot No.115 on 05.10.2020 with the allegation that plaintiff and

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defendant No. 1 to 6 are bhumidhar of plot in dispute. He further submitted that written statements were filed in the above mentioned suit by the defendants. He further submitted that the defendant No.4 Mukesh Kumar filed an application under Order 7 Rule 11 read with with Section 151 of C.P.C. alleging that defendant No.6 Nishant Bhati is minor and there is no natural guardian and suit cannot be proceed. He further submitted that second ground taken in the application under order 7 Rule 11 C.P.C. was that Gram Sabha had been made party in place of Gram Panchayat. He next submitted that plaintiff filed an application dated 14.12.2020 under Order 6 Rule 17 C.P.C. with the prayer that in place of Gram Sabha, Gram Panchayat should be mentioned in the plaint. He further submitted that Smt. Lajjawati is real grand mother of minor Nishant Bhati and impleadment of minor Nishant Bhati through guardian has been made in the plaint. He further submitted that application dated 14.12.2020 filed by the plaintiff has been allowed vide order dated 11.02.2021 and the revision filed against the order dated 11.02.2021 has been dismissed. He further submitted that respondent No.4 Mukesh Kumar filed writ No.36194 of 2022 in which no interim order has been passed but on the ground of pendency of the Writ C No.36194 of 2022, trial court has passed the order for abating the suit proceeding which is illegal. Counsel for the petitioner submitted that application filed by the petitioner under order 6 Rule 17 C.P.C. has been allowed in the ends of justice, which requires no interference. He further submitted that in Writ C No.36194 of 2022 no interim order is operating as such the impugned order dated 20.01.2023 abating the proceeding of partition suit is wholly illegal and liable to be set aside and proper direction be issued for expeditious disposal of the partition suit in

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accordance with law.

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On the other hand, Mr. Shudhir Kumar Pandey, counsel for the respondent No.4 in writ petition No.7407 of 2023 submitted that partition suit filed by petitioner is not maintainable. He further submitted that there was already partition by the members of the family, as such instant partition suit is harassment of the parties.

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I have considered the arguments advanced by the counsel for the parties and perused the record.

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There is no dispute about the fact that partition suit under Section 116 of the U.P. Revenue Code, 2006 has been filed by the plaintiff Shiv Shanker against the defendants. There is also no dispute about the fact that application dated 18.11.2020 under Order 7 Rule 11 C.P.C. has been rejected and application under Order 6 Rule 17 C.P.C. has been allowed vide order dated 11.02.2021. There is also no dispute about the fact that no interim order is operating in Writ C No.36194 of 2022.

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In view of the fact that vide order dated 11.2.2021 amendment application has been allowed to mention Gram Panchayat in the place of Gram Sabha and no interim order is operating against the order dated 11.02.2021, as such there was no occasion to pass the order dated 20.01.2023 abating the proceeding of partition suit

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It is material that partition suit cannot be abated or dismissed on technical grounds as in the suit for partition status defendant is also as of plaintiff

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Considering the facts and circumstances of the case, order dated 20.01.2023 passed by Sub-Divisional Officer cannot be sustained and is hereby set aside. Writ petition No.7407 of 2023

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stands allowed and Writ Petition No.36194 of 2022 is hereby dismissed . Matter is remanded back before the respondent No.1 Sub-Divisional-Officer to register the partition suit to its original number and decide the same in accordance with law expeditiously and preferably within a period of six months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.

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Order Date :- 4.10.2023 PS*

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Digitally signed by :- PRITI SHARMA High Court of Judicature at Allahabad

Raghuraj Singh v. Sub Divisional Officer and 7 Others

Case brief

What is this about?

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Raghuraj Singh v. Sub Divisional Officer and 7 Others

Case brief

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