Rajendr Kisor Sharma vs Commissioner Varanasi Division And Others

Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 to 3 and? Sri Manoj Kumar Yadav for respondent no.3.

By means of the present petition, the petitioner is challenging the interlocutory order passed by the respondent no.3 in a suit for declaration and partition of the suit property. It appears that the petitioner has been impleaded as defendant in the said suit. The petitioner has put in appearance, however, instead of filing a written statement he has filed an application on 28.02.2014 on the ground that he had purchased plot no.69 measuring 19 heir (???) and is in possession of the said land after declaration of the same as ''Abadi'' under section 143 of U.P. Z.A. & L.R. Act. The order dated 02.07.2013 for declaration of the said land as ''Abadi'' has been filed in support of the prayer made by the petitioner that the respondent no.3 had no jurisdiction to entertain the suit for declaration and partition treating the land in question as agricultural plot.

The application dated 28.02.2014 filed by the petitioner was objected by the plaintiff on the ground that the said order had been obtained by fraud and the same is an ex-parte order. On the recall application moved by the plaintiff, the order of declaration dated 02.07.2013 has been set aside and the matter has been restored on merits. Further the construction raised by the petitioner are in violation of the interim order dated 18.09.2006 passed in the declaratory suit for maintaining the status-quo on the plot in question. The declaratory suit was filed on 31.03.2003. The petitioner is subsequent purchaser from one of the defendants during pendency of the suit and is claiming his right on the basis of the sale deed dated 29.10.2003.

In view of the fact that the petitioner is a subsequent purchaser of one of the defendants in the suit against whom the decree of partition and declaration has been sought, the right of the petitioner in the land in question, if any, would be determined in the said suit after framing issues in this regard.

So far as the declaration sought by the petitioner under Section 143 of the Act, the same has no relevance in as much as the construction has been raised by the petitioner after the status-quo order has been passed by the Court, concerned. The contention of the learned counsel for the petitioner that in view of the section 331-A (1) of the Act, it was obligatory upon the revenue court to frame an issue regarding the nature of the land in question is wholly misconceived.

The nature of the land in question subject matter of suit for declaration would be determined on the date of filing of the suit itself. Any changes made in the nature of the land during the pendency of the suit would be of no consequence so far as the relief of declaration and partition is concerned. With the above observations and direction, this Court does not find any justification to interfere in the order impugned. 7. The writ petition is wholly misconceived and hence dismissed.