Heard learned counsel for the parties.
In the Khatauni of 1374 to 1378 Fasli, one Kripa Shanker was recorded as Bhumidhar over the land in dispute and petitioner Rama Shanker was recorded as its occupant. Petitioner filed suit under Section 229-B of U.P.Z.A. & L.R. Act against Kripa Shanker and Gaon Sabha. The suit was registered as Suit No.706 and was decreed ex parte on 30.06.1975 by S.D.O./ Deputy Collector (Revenue), Varanasi.
Petitioner Rama Shanker and respondent No.5, Girja Shanker and late Sri Sita Ram father of respondent No.4, Smt. Chhama were real brothers and sister's son of Kripa Shanker.
After ex parte decree dated 30.06.1975, petitioner's name was entered in the revenue records as 'Sirdar'.
Thereafter, consolidation proceedings started in the 1 village in question. At that time (basic year) name of petitioner was recorded as 'Sirdar'. During consolidation proceedings, Sita Ram and Girja Shanker, brothers of the petitioner filed objections. Before A.C.O., compromise was filed (which was afterwards denied by the petitioner). On the basis of compromise, A.C.O. passed order on 31.07.1978 and all the three bothers were declared to be co-sirdars with equal share. Against the said order, petitioner filed appeal before S.O.C. Appeal was allowed on 21.09.1994 and matter was remanded to C.O. Thereafter, C.O. decided the matter on 06.02.1995 and against the said order, appeal before S.O.C. is pending. It is also stated that consolidation proceedings concluded on 15.06.1996.
Thereafter, respondent No.4, daughter of Sita Ram filed restoration application before Deputy Collector on 27.05.2003 praying for setting aside of ex parte order dated 30.06.1975. Restoration application was registered as Restoration Case No.116/706 of 2003. Deputy Collector (I), Varanasi allowed the restoration 2 application through order dated 17.04.2006. Against the said order, petitioner filed Revision No.4 of 2005. Additional Commissioner (Judicial), Varnasi Division, Varanasi dismissed the revision on 17.04.2006, hence this writ petition.
The courts below held that service through refusal was not fully proved and the endorsement of process server that the contesting defendant in the suit, i.e. Kripa Shanker refused to accept the notice, was witnessed by the petitioner, who was plaintiff and on the registered notice there was no endorsement of the postman.
Deputy Collector after allowing the restoration application, by the same order abated the suit due to pendency of consolidation proceedings. Regarding delay of 28 years, Deputy Collector observed that it was a case of fraud, hence limitation was not applicable. There is no such principle of law that if ex parte decree is obtained by fraud, then after years of getting knowledge, aggrieved party is entitled to file restoration application. Fraud may extend the limitation only if due to it (fraud), 3 knowledge of the order is concealed from the aggrieved party. In the impugned orders, absolutely nothing has been stated regarding consolidation proceedings where compromise was filed, which was afterwards challenged by the petitioner.
At the time of filing of objections before A.C.O., respondent No.5 and Sita Ram-father of respondent No.4 were aware of the ex parte order dated 30.06.1975 otherwise they would not have filed the objections. Copy of objections has not been annexed either with the writ petition or counter affidavit or rejoinder affidavit, however in Para-16 of the counter affidavit of respondent No.4, it has been stated that name of petitioner was wrongly recorded on the basis of ex parte judgment and decree dated 30.06.1975, hence as soon as consolidation came into operation, objection was filed. Sita Ram died during pendency of appeal before S.O.C. and thereafter respondent No.4 was substituted. In Para-11 of her counter affidavit, respondent No.4 has stated that Sita Ram was not aware of the order dated 30.06.1975. This 4 is not believable and it is contradictory to what has been stated in another paragraph of the same counter affidavit, i.e. Paragraph-16.
Neither petitioner nor contesting respondent has filed copy of objection before A.C.O. nor any of the orders passed by A.C.O. or C.O. or appellate court. It shows either carelessness or deliberate concealment. In the affidavit filed in support of the restoration application, which is part of Annexure-IV to the writ petition respondent no.4 stated at one place that her father executed registered Will in her favour on 23.04.1985 (Para-1) and at another place date of Will was given as 23.04.1995 (Para-8 of the affidavit). In the said affidavit, on several places, it was stated that respondent No.4 was not aware of ex parte judgment and decree dated 30.06.1975. It was nowhere stated that her father, i.e. Sita Ram, was not aware of the said ex parte judgment and decree. Date of death of Sita Ram has also not been given. After the death of Kripa Shanker, Sita Ram would have got share in the property if ex parte judgment and 5 decree dated 30.06.1975 had not been passed. Accordingly, after death of Kripa Shanker, Sita Ram could file restoration application. Sita Ram filed objections before A.C.O. in 1978, hence at least by that time, he was aware of ex parte judgment and decree dated 30.06.1975. He did not file restoration application. Accordingly, after his death, fresh limitation could not be claimed by respondent No.2.
Accordingly, writ petition is allowed. Both the impugned orders are set aside and restoration application filed by the respondent No.4 is rejected.
However, it is made clear that the question as to whether petitioner entered into any compromise in consolidation proceedings or not shall be decided in the appeal which is stated to be pending before S.O.C. Order Date :- 25.1.2010 NLY 6