Heard Sri Dwijendra Mishar, learned counsel for petitioners, learned State counsel as well as Sri R.K. Tripathi, learned counsel appearing on behalf of O.P. No. 3 and perused the record.
The controversy in the present case relates to Khasra No. 99/0.06, 200/0.46, 227/0.72 situated in village Bhakla, Pargana Hisampur, Tahsil Kaiserganj, Baharaich (hereinafter referred to as the property in dispute) Facts in brief of the present case are that Gulam Haider and Cheddu were real brothers R/o of Village Bhakla, post Kundasar, Baharaich. Sri Cheddu died issue less having no heir, as such his share in the property in dispute has gone toSri Nizamuddin S/o Gulam Haider who had inherited the same as per the provisions as provided under Section 171 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the Act).
Thereafter, Smt. Rajban has filed a suit under Section 229B of the Act, decreed on 25.03.1982 in respect to the property in question. Aggrieved by the same, Nizamuddin filed an appeal before the appellate authority, dismissed by an order dated 17.02.1984, and for redressal of his grievances Sri Nizamuddin filed a second appeal (second appeal No. 6 of 1984-85 (Nizamuddin Vs. Smt. Rajban) before Board of Revenue.
During the pendency of the second appeal, by virtue of a registered sale deed 17.11.1984, Smt. Rajban sold her share in the property in question to Sri Gulam Waris/O.P. No. 3. Subsequently, on 11.12.1986 a compromise has been entered between Smt. Rajban and Sri Nizamuddin. On the basis of the said compromise (anneuxre No. 5), the second appeal was allowed by means of the judgment and decreed dated 16.02.1987.
On 25.05.1987, Gulam Waris who has purchased the share in the property in dispute by virtue of a registered sale deed dated 17.11.1984 from Smt. Rajban, moved an application for recall of the compromise decree dated 16.02.1987 passed by Board of Revenue in Second Appeal No. 6 of 1984-85, by an order dated 03.04.1995, the same has been dismissed.
On 24.05.1995, Sri Gulam Waris moved another application for recall of the order dated 03.04.1995, dismissed by an order dated 12.12.2003.
In the meantime, Sri Nizamuddin by virtue of a sale deed dated 26.08.2008 had sold the property in question to Sri Anil Singh/petitioner No. 2.
Again on 17.11.2008, Gulam Waris/O.P.No. 3 moved an application for recall of the orders dated 03.04.1995 and 12.12.2003.
By an order dated 22.10.2009, the orders dated 12.12.2003 and 03.04.1995 were recalled by the O.P.No. 2 and the restoration application was allowed, and the second appeal was restored to its original number.
Aggrieved by the said order, petitioners have filed the present writ petition before this Court for redressal of their grievances under Article 226 of the Constitution of India.
Sri Dwijendra Mishra, learned counsel for petitioners submits that as Sri Gulam Waris had purchased the property in question during pendnecy of the second appeal, the application for recall moved by him is not maintainable, so in view of the said facts the order which is under challenge, passed by Board of Revenue (Annexure No. 1) is liable to be set aside and in support of his argument he has placed reliance on the judgment given by this Court in the case of Smt. Premwati Vs. Jagdish Prasad (Dead) through LRs. Others (2006(101) RD 352).
Another argument advanced by learned counsel for petitioner that once the application dated 25.05.1987 moved by Sri Gulam Waris for recall of the judgment and decree dated 16.02.1987 has been rejected by an order dated 03.04.1995 then subsequent applications moved by him respectively dated 24.05.1995 and 17.11.2008 are not maintainable in view of the law as laid down in the case of Husain Ali and others Vs. Fakrey Alam and others (2012 (30) LCD 1554).
Accordingly, learned counsel for petitioner submits that the impugned order dated 22.10.2009 (Annexure No. 1) passed by Board of Revenue, U.P., Allahabad/O.P. No. 2 is contrary to law, liable to be set aside.
Sri R.K. Tripathi, learned counsel appearing on behalf of O.P.No. 3, in rebuttal, submits that Sri Gulam Waris purchased the property in question by virtue of sale deed dated 17.11.1984 from Smt. Rajban during the pendency of the second appeal No. 6 of 1984-85 in which Smt. Rajban is the respondent and thus, after the said transaction Smt. Rajban has got no authority to enter into he compromise dated 11.12.1986, rather the said act on her part is a fraudulent act, thus, on the basis of which the compromise decree dated 16.02.1987 passed, is without jurisdiction and void ab initio, so an application moved by Sri Gulam Waris dated 25.05.1987 for recall of the judgment and decree dated 16.02.1987 is maintainable.
Sri R.K. Tripathi, learned counsel for O.P.No. 3 further submits that when the application was dismissed for want of prosecution by order dated 03.04.1995 then another application was moved on 24.05.1995, dismissed on 12.12.2003 then for redressal of his grievances, he again moved an application on 17.11.2008 for recall of the orders dated 03.04.1995 and 12.12.2003, rightly allowed by means of the impugned order dated 22.10.2009 (Annexure No. 1) passed by O.P. No. 2 as by the said order, the matter was reopened for adjudication before the Board of Revenue in a second appeal, on merit where the parties shall have ample opportunity to prove their case, as such there is neither any illegality nor infirmity in the impugned order which is under challenge in the present writ petition, so the same is liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
Admitted position emerged out from the record in the present case is that initially in order to get her share in the property in dispute Smt. Rajban has filed a Suit under Section 229B of the Act on the ground that she is wife of Sri Cheddu, decreed, thereafter first appeal filed by the petitioner (Nizamuddin) has been dismissed.
Aggrieved by the said facts, the second appeal has been filed by Sri Nizamuddin (Second appeal No. 6 of 1984-85). During the pendency of the second appeal, Smt. Rajban has executed a registered sale deed on 17.11.1984 in favour of Sri Gulam Waris, and concealing the said fact a compromise has been entered by her on 11.12.1986 with Nizamuddin (petitioner No. 1) on the basis of which, the second appeal was allowed by judgment and decree dated 16.02.1987, when the said fact came to knowledge of Gulam Waris he moved an application for recall of the compromise decree on 25.05.1987, dismissed by order dated 03.04.1995.
From the perusal of the order dated 03.04.1995 (Annexure No. 6), it transpires that while passing the same the Board of Revenue/O.P.No. 2 has given a finding that in the second appeal decided by an order dated 16.02.1987 Gulam Waris was not a party, so he has no right to move application for recall/restoration, as such, argument as advanced by the learned counsel of Sri Nizamuddin has got force, rejected the said application although at the time of passing of the said order the counsel for Gulam Waris was not present.
Accordingly, from the perusal of the order dated 03.04.1995 passed by Board of Revenue, it is clear that the said order although passed without hearing the counsel for Gulam Waris, but the same has been passed on the basis of material on record on merit. In view of the said facts, once the order dated 03.04.1995 has been passed by Board of Revenue on merit thereby rejecting the application of Gulam Waris for recall of the judgment and decree dated 16.02.1987 then in that circumstances, the subsequent application moved by him for recall of the said order respectively i.e. application dated 24.05.1995 nd 17.11.2008 are not maintainable in view of the law as laid down by this Court in the case of Husain Ali and others Vs. Fakrey Alam and others (2012 (30) LCD 1554), in para 16, the relevant portion reproduced hereinbelow:-
"In view of the facts that have been brought on record, this writ petition deserves to be allowed with costs on the respondent No.1. Accordingly, the writ petition is allowed and the order dated 20.11.2007 (Annexure-10 to the writ petition) is quashed. It is held that learned Commissioner had no power to entertain the second restoration application. It is further found that the respondent No.1 has misused and abused the process of law in order to obtain the order from the Board of Revenue, as such, a cost of Rs. 5000/- is hereby imposed on the respondent No.1 to be payable to the petitioner within a month. "
Thus, the order dated 22.10.2009 (Annexure No. 1) passed by Board of Revenue is not contrary in law, however, looking into the peculiar facts and circumstances of the case that Smt. Rajban plaintiff-respondent in second appeal No. 6 of 1984-85 has executed a registered sale deed in favour of Gulam Waris on 17.11.1984 and concealing the said facts had entered into a compromise with Nizamuddin. The said act on the part of Smt. Rajban cannot in any manner said to be a good conduct on her part rather she has not come with clean hands while entering into a compromise with Sri Nizamuddin on 11.12.1986 on the basis of which the compromise decree dated 16.02.1987 has been passed, so keeping in view the said fact and the settled proposition of law that nobody should be left remediless and every person should get an opportunity before appropriate forum to settle his/her grievance in accordance with law, I feel appropriate that the equity in the present case demands, looking into the facts of the case Sri Gulam Waris/O.P.No. 3 may be permitted to move an appropriate application for reconsideration of the order dated 03.04.1995 i.e. review application under Section 151 (See. Ram Chandra Singh Vs. Savitri Devi and others, 2003 (8) SCC 319; Raj Kumar Soni and another Vs. State of U.P. and another, 2007 (25) LCD 1345).
In the case of Ramdas Shivram Sattur Vs. Rameshchandra Popatlal Shah and others, 2007 (4) AWC 3770 (SC), Hon'ble the Apex Court held that "the Courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, dis-entitled himself from seeking the indulgence of the Court."
For the foregoing reasons, the writ petition is allowed with the liberty Sri Gulam Waris, if he so advised, to file an appropriate application (review application under Section 151) for reconsideration of the order dated 03.04.1995 passed by Board of Revenue on second appeal No. 6 of 1984-85 within a period of four weeks from the date of receiving a certified copy of this order and if the same is done, the application so made, shall be entertained and shall not be dismissed on the ground of limitaion and be decided on merit after hearing learned counsel for parties in accordance with law without being influenced by the findings given hereinabove.
Order Date :- 30.8.2012 Ravi/