C.M.W.P. No. 17955 of 2014. Case: Shiv Murat Vs State of U.P.. High Court of Allahabad (India)

Case NumberC.M.W.P. No. 17955 of 2014
CounselFor Appellant: Pratap Kanchan Singh and Ajay Bhanot, Advs. and For Respondents: C.S.C., Anuj Kumar and Santosh Kumar Srivastava, Advs.
JudgesRam Surat Ram (Maurya), J.
IssueCode of Civil Procedure, 1908 (CPC) - Order IX Rule 13; Code of Criminal Procedure, 1973 (CrPC) - Section 145; General Clauses Act 1897 - Section 27; Indian Evidence Act, 1872 - Sections 114, 4; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Section 229B
Judgement DateMay 05, 2014
CourtHigh Court of Allahabad (India)


Ram Surat Ram (Maurya), J.

1. Heard Sri Ajay Bhanot and Sri Pratap Kanchan Singh, for the petitioners and Sri Santosh Srivastava, for respondents-7a and 7b, caveators. The writ petition has been filed for quashing the order of Board of Revenue, U.P. dated 20.2.2014, arising out of suit for declaration of rights under section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act").

2. Shiv Murat (petitioner-1) filed a suit (registered as Suit No. 31 of 1982) for declaring him as co-sharer in the land recorded in khatas 127, 164 and 172 of village Sudinpur, pargana Naraini, district Banda. The land of khata 127 was recorded in the names of Ram Pal son of Shiv Prasad, Ram Lal and Sadanand sons of Ran Saran and Tirath Prasad son of Anusuiya. The land of khata 164 was recorded in the names of Ram Pal son of Shiv Prasad. The land of khata 172 was recorded in the names of Ram Pal son of Shiv Prasad and Ram Lal and Sadanand sons of Ran Saran. The suit was filed on the allegations that Shiv Murat (the plaintiff) and Ram Pal, Shiv Surat and Chandra Shekhar (defendants-3, 4 and 5) were sons of Shiv Prasad and members of joint Hindu family. The plaintiff and defendants-3, 4 and 5 were co-sharers in the land in dispute along with other recorded tenure holders but the name of Ram Pal was alone recorded in it, in representative capacity. It is alleged that summons in the suit were issued to the defendants on 9.7.1982. The process server returned the summons with endorsement on it, dated 27.7.1982 that noticees had refused to take summons and in respect of Tirath Prasad (defendant-8) as "dead" and a copy of summons were pasted on the door of the defendants. Trial Court presumed service of the summons as sufficient. The plaintiff filed an application for substitution of the heirs of Tirath Prasad, stating that his heirs were already on record as remaining defendants. Trial Court thereafter proceeded ex parte in the suit and recorded statements of the witnesses of the plaintiff and by his ex parte judgment dated 4.1.1983 decreed the suit and directed for recording the names of the plaintiff and defendants-4 and 5 as co-sharers in the land in dispute.

3. Smt. Rukmani and Smt. Sunaina (respondents-11 and 12) filed an application dated 3.4.1984, for setting aside the ex parte decree dated 4.1.1983. They stated that they were daughters of Tirath Prasad (defendant-8), who executed a registered will dated 28.7.1980 in their favour. After death of Tirath Prasad, they filed an application for mutation of their names before Tehsildar...

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