Allowed

Ram Ji and 5 Others v. Additional Commissioner (Judicial) Ayodhya Mandal, Ayodhya and 6 Others

Allahabad HC7 Mar 2024/1997/2024

Case brief

AI extract

What is this about?

Writ petition challenging orders declining to frame a preliminary issue on maintainability of fresh Revenue Code suits filed despite a revisional direction to reconstitute an earlier declaratory suit's missing file. Court held the reasoning amounted to pre-judging, set aside both orders, and directed framing and decision of the maintainability issue.

What did the court decide?

Impugned orders dated 06.01.2023 and 03.02.2024 set aside; parties directed to appear before Trial Court on 02.04.2024 for framing and deciding the maintainability issue; costs made easy.

Ram Ji and 5 Others Vs Additional Commissioner… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:20925

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Court No. - 8

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Case :- WRIT - C No. - 1997 of 2024

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Petitioner :- Ram Ji And 5 Others Respondent :- Additional Commissioner (Judicial) Ayodhya Mandal, Ayodhya And 6 Others Counsel for Petitioner :- Rudra Mani Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar Pandey

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Hon'ble Jaspreet Singh,J .

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Heard Sri Rudra Mani Shukla, learned counsel for the petitioner and Sri Ajay Kumar Pandey, learned counsel for the private respondents.

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By means of the instant petition, the petitioner assails the order dated 06.01.2023 passed by the Sub Divisional Officer (Judicial), Tehsil Gauriganj, District Amethi as well as the order dated 03.02.2024 passed by the Additional Commissioner (Judicial) Ayodhya Region, Ayodhya affirming the order of the Sub Divisional Officer.

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The submission of learned counsel for the petitioner is that one Sri Jagannath was the recorded bhumidhar of Gata No. 271 and 203 situate in Village Katra, Lalganj, Pargana Amethi, Tehsil Gauriganj, District Amethi.

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After the death of Sri Jagannath, his widow Smt. Sukhna was recorded as bhumidhar being the heir. It is the contention of the petitioner that Smt. Sukhna after the death of Jagannath had remarried with Sri Ram Adhar and thereafter she executed a sale deed in respect of Gata No. 271 and 303 as well as of a residential house in the Abadi land in favour of Ram Adhar on 17.05.1979.

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Similarly, Sri Ram Adhar even without getting his name mutated in the revenue records executed a sale deed in favour of the father of the private respondents nos. 3 to 5 namely Kalp Bahadur in respect of Gata No. 303 and the residential house.

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In the meantime, the daughters of Smt. Sukhna and Jagannath namely Kripala and Shiv Pati filed a regular suit no. 1999 of 1980 assailing the two sale deeds dated 17.05.1979 and 07.02.1980. The Regular suit was dismissed by the Civil Court on the ground that the land in question was agricultural, hence, jurisdiction would vests with the Revenue Court.

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Even while the said suit was pending, Smt. Kripala and Shiv Pati filed a mutation case on the ground that after the death of Jagannath, Smt. Sukhna had re-married and therefore she had lost her right and the property would now vest with the daughters.

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It is also relevant to notice that Smt. Sukhna died on 20.01.1986 and in the aforesaid backdrop, Sri Ram Adhar filed a declaratory suit seeking rights over Gata no. 271 and 303. Before the Revenue Court, the suit for declaration filed by Sri Ram Adhar was contested by Smt. Kripala and Shiv Pati who filed their written statement, however, at a later stage, the opportunity to lead evidence was closed as Smt. Kripala and Shiv Pati stopped appearing and the matter proceeded ex-parte.

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Smt. Kripala and Shiv Pati being aggrieved against the order dated 13.08.1999 had preferred a revision which was decided on 03.11.2016 and the order dated 13.08.1999 was set aside directing the court to decide the matter after affording the opportunity of hearing to the parties.

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It was also noticed that since the file of the original case filed under Section 229-B of the Uttar Pradesh Zamindari and Land Reforms Act, 1950 (hereinafter referred to as ' the Act of 1950') was missing, the Revisional Court also directed that the Trial Court will get the file re-constituted. In the aforesaid backdrop instead of getting the file re-constituted, the private respondent no. 7 Ram Adhar who was the plaintiff along with the heirs of Kalp Bahadur who are the private respondent nos. 3 to 6 filed new cases under Section 144 of the U.P. Revenue Code, 2006. Both the new cases were registered and notices were issued.

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During the pendency of the cases, Smt. Kripala died and she was represented by her legal heirs. Before the Sub Divisional Officer, the legal heir of Smt. Kripala, namely Dhruv Narayan appeared before the court and filed his written statement raising various pleas including that once there was a direction of the Revisional Court to re-constitute the file, hence, it was not appropriate to have accepted the two new suits which were filed as they were not maintainable hence, the issue of maintainability of the two suits be considered and decided as a preliminary issue.

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That upon the said application, the Trial Court by means of order dated 06.01.2023 held that since the instant suit was under Section 144 of the U.P. Revenue Code, 2006 and there was no trace of the earlier suit filed bearing No. 111 and the earlier suit was under Section 229-B of the Act of 1950 and since primarily

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both the suits were for declaration, hence, even though, the earlier file may not be available, hence, it would not impact the new suit, hence it should proceed on merits.

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The petitioner being aggrieved preferred a Revision and the Revisional Court also by means of impugned order dated 03.02.2024 has reiterated the same view while rejecting the revision.

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The Court had called for the records of the proceedings and from the perusal thereof it indicates that upon the exchange of pleadings, the issues were to be framed but the Court while perusing the record with the help of the Standing Counsel could not find any order duly signed by the Presiding Officer by which issues were framed.

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In the aforesaid circumstances where the petitioner had raised an objection that earlier Ram Adhar and Kalp Bahadur Singh had filed a suit wherein an order was passed which was assailed in revision and the Revisional Court while remitting the matter had directed the court concerned to get the file reconstituted but instead of getting the file re-constituted, the heirs of Kalp Bahadur and Ram Adhar have filed two separate suits and this was objected by the petitioners.

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An issue to the effect was germane to be framed and decided, once a suit is pending whether the subsequent suit would be maintainable is a question which is relevant. Apparently, as noticed above, it does not transpire from the record that the issues have been framed, consequently, there can be no hesitation on the part of the Trial Court to frame the aforesaid issue or additional issue regarding maintainability of the suit.

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It would have been a different thing, if the court would have opined that the issue raised does not require to be decided as a preliminary issue but the reasoning given that since the file is not available of the earlier suit and as both the suits are for declaration of rights, hence, it may not impact the second. this amounts to pre-judging the issue even without adverting to it as per law. The Revisional Court also fell in the same error.

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Considering the aforesaid, this Court is of the view that the impugned order dated 06.01.2023 passed by the Sub Divisional Officer (Judicial), Tehsil Gauriganj, District Amethi as well as the order dated 03.02.2024 passed by the Additional Commissioner (Judicial) Ayodhya Region, Ayodhya are not sustainable and are consequently set aside. The parties shall appear before the Trial Court on 02nd April, 2024 and the court

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concerned shall frame issues/additional issues on the issue of maintainability and after affording full opportunity of hearing to the parties but without granting any unnecessary adjournments to either of the parties shall decide the said issue of maintainability along with the other issues after taking evidence.

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In view of the aforesaid, the writ petition shall stand allowed and the impugned orders dated 06.01.2023 passed by the Sub Divisional Officer (Judicial), Tehsil Gauriganj, District Amethi as well as the order dated 03.02.2024 passed by the Additional Commissioner (Judicial) Ayodhya Region, Ayodhya are set aside. The original records has been handed over to the learned Standing Counsel. Costs are made easy.

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O rder Date :- 7.3.2024 Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Ram Ji and 5 Others v. Additional Commissioner (Judicial) Ayodhya Mandal, Ayodhya and 6 Others

Case brief

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Ram Ji and 5 Others v. Additional Commissioner (Judicial) Ayodhya Mandal, Ayodhya and 6 Others

Case brief

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