Heard Sri Rajesh Kumar Dubey, learned counsel for the petitioner, Sri M.D.Singh Shekhar assisted by Sri R.D.Tiwari, learned counsel for respondent no. 1 and the learned standing counsel appearing for the State respondents.
This writ petition has been filed with the following prayers:
A- issue a writ order or direction in the nature of certiorari quashing the orders dated 29.11.2013, 3.9.2013 Annexure no. 7 and 5 to this writ petition and 6.12.1986 i.e. annexure 3 to this writ petition so far as it relates with the land of Araji no. 327, measuring its area 4 acres 330 kari, situated in village Baldeeh, Tappa- Bala, Pargana- Beladaultabad, police station- Gambhirpur, Tehsil Lalganj, District Azamgarh.
B- issue a writ, order or direction in the nature of mandamus commanding the respondent no .9 to provide the bhumidhari rights to the petitioner over the land of Araji no. 327, mearusing its area 4 acres 330 kari, situated situated in village Baldeeh, Tappa- Bala, Pargana- Beladaultabad, police station- Gambhirpur, Tehsil Lalganj, District Azamgarh with respondent no.1 within a time as stipulated by this Hon'ble Court.
C- issue any other writ order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
D- Award the cost of the petition in favour of the petitioner against the contesting respondents.
Vide order dated 3.9.2013 the learned Additional Commissioner (Administration) Azamgarh Division Azamgarh has allowed the revision and set aside the judgment and decree dated 6.12.1986 to the extent of recording name of respondents, second set, over an area of 4 acre 330 kari of plot no. 327 whereas by the order dated 29.11.2013 the petitioner's restoration application seeking recall of the order dated 3.9.2013 has been rejected. It appears Suit No. 149/81 filed by father of the petitioner and his father's brother, respondent no.1 was decreed in terms of the compromise with respect to plot nos. 257 measuring 4.786 Acre, plot no. 327 measuring about 8.66 acres. The compromise was entered into between the parties with respect to an area 4.33 acres jointly between respondent no.1 and Sri Raj Kumar, father of the petitioner. and the remaining area 4.330 acres was to be recorded in the name of the respondents, second set.
Aggrieved by the aforesaid judgment and decree respondent no.1 has filed a revision in the year 2011 stating therein that inadvertently plot no. 327 has wrongly been made part of the compromise as the basis of the compromise was not in existence. In the revision respondent no.4 has stated that he has strain relation with the wife of his brother and son of his brother is minor, therefore, he himself is filing the revision. The said revision was allowed vide judgment and order dated 3.9.2013 and the judgment and decree passed in Suit No. 149 of 2981 has been modified to the extent to which name of the respondents, second set was recorded over an area of 4.33 acres over plot no. 327 with the further direction to record the name of respondent no.1 over an area of 4.33 acres of plot no. 327.
Aggrieved by this judgment and order the respondents have filed three writ petitions Nos. 2124, 2122 and 2126 of 2014. These writ petitions have been dismissed on the ground of alternative remedy available to them somewhere else.
The present petitioner has filed restoration seeking recall of the order dated 3.9.2013 on the ground that the respondent no.1 has erred in not impleading the petitioner in the revision either as revisionist or as opposite party and the revisional court has erred in passing the order against the interest of dead person (the petitioner's father). The petitioner's application was rejected by holding that when neither the petitioner's father nor the petitioner was party in the revision he cannot maintain the restoration application.
Sri M.D.Singh Shekhar, learned senior counsel appearing for respondent no.1 has invited attention of the Court towards the prayer made in the restoration application where in a prayer has been made to set aside the order dated 3.9.2013 and declare the petitioner has Bhumidhar along with respondent no.1, Ram Samujh. In his submission in case the prayer sought for is allowed and order dated 3.9.2013 is set aside there would be no occasion to declare the petitioner as Bhumidhar. He has further contended the writ petition is not the appropriate remedy to challenge such order and the petitioner's remedy is somewhere else. In his submission as against the impugned order dated 3.9.2013 earlier three writ petitions, being Civil Misc. Writ Petition Nos. 2124, 2122 and 2126 of 2014 were filed and have been dismissed on the ground of alternative remedy of revision this writ petition may also be dismissed on the same ground.
After hearing the learned counsel for the parties, prima facie, I am of the opinion that it is not a case where the writ petition should be dismissed on the ground of alternative remedy.
Matter requires scrutiny.
Issue notice.
Sri R.D.Tiwari has filed caveat on behalf of respondent no. 1 whereas notices on behalf of respondent nos. 8,9 and 10 have been accepted by the office of the learned chief standing counsel and Sri R.C.Upadhyaya has accepted notice on behalf of respondent no.11, therefore, notice need not be served to respondent nos. 1 , 8 to 11 again. Let notice be issued to respondent nos. 2 to 7 by registered post returnable at an early date. Steps be taken within two weeks.
Affidavits may be exchanged by the next date of listing.
As an interim measure, without prejudice to right and contention of the parties, during the pendency of the writ petition respondent nos. 1 to 7 are restrained from creating any third party right and they are also restrained from changing the nature of the land in dispute. However, the proceedings of the revisions, if any, filed before the Board of Revenue against the order dated 3.9.2013, may go on and concluded without being influenced by the pendency of the present writ petition.
Order Date :- 11.4.2014 samz