Brijendra Singh v. State of U.P. and 5 Others

Court No. - 51 Case :- WRIT - C No. - 39402 of 2023 Petitioner :- Brijendra Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vinod Kumar Kushwaha Counsel for Respondent :- C.S.C,Hari Narayan Singh Hon'ble Chandra Kumar Rai,J.

¶1Heard Sri Vinod Kumar Kushwaha, learned counsel for the petitioner, Sri G.K. Saxena, learned Addl. C.S.C. for the state-respondents and Sri Hari Narayan Singh, learned counsel for the respondent-gaon sabha.

¶2The instant writ petition has been filed against the order dated 26.6.2023, passed by respondent no.2/Addl. Commissioner, Kanpur Division, Kanpur in Appeal No.2095/2021 (Brajendra Singh vs. Jitendra Singh and Others) and order dated 23.11.2021, passed by respondent no.3/S.D.M., Tehsil Sikandara, Kanpur Dehat in the proceeding under Section 116 of the U.P. Revenue Code, 2006.

¶3Counsel for the petitioner states that in the proceedings under Section 116 of the U.P. Revenue Code, 2006, an order confirming the kurra, has been passed in accordance with law. It is further submitted that the contesting respondents have filed an application for restoration/recall which has been allowed in arbitrary manner and the earlier order passed in the partition suit was set aside on the ground that the order was passed in ex parte manner. It is further submitted that the orders were passed, following due procedure of law but in order to linger the proceeding, restoration application has been filed and the earlier orders have been set aside.

¶4On the other hand, Sri G.K. Saxena, learned Addl. C.S.C. and Sri H.N. Singh, learned counsel for the respondent-gaon sabha submitted that while allowing the restoration application, the trial court has recorded finding that proper opportunity was not afforded to the parties, as such, the order was recalled and the matter has been restored, as such, the petitioner should appear in the pending proceeding which shall be decided in accordance with law.

¶5I have considered the arguments advanced by learned counsel for the parties and perused the records.

¶6There is no dispute about the fact that the partition suit filed by the parties is pending before the trial court and the earlier orders passed in the partition suit have been set aside and partiton suit has been restored for fresh decision.

¶7In view of the finding of fact recorded by the court concerned, no case for interference is made out in exercise of writ jurisdiction.

¶8Considering the entire facts and circumstances of the case, without expressing any opinion on the merits of the case, this petition is disposed of with the direction to respondent no.3 to decide the proceedings of the partition suit, as expeditiously as possible, preferably within a period of 6 months, from the date of production of a certified copy of this order before the authority concerned, after affording proper opportunity of hearing to the parties concerned, in accordance with law. Order Date :- 1.12.2023 C.Prakash High Court of Judicature at Allahabad