Point of Law: wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.

JUDGMENT :

1. Heard Sri Hemant Kumar Mishra, learned counsel for the petitioner and Mrs. Bulbul Godiyal, Senior Counsel assisted by Sri Janardan Singh on behalf of contesting opposite party nos. 6 and 7.

2. The opposite parties nos.6 and 7 of W.P. No. 22981 (MS) of 2019 namely Smt. Prabhawati and Vijay Kumar have instituted a petition under Article 227 of the Constitution of India bearing No. 7563 (MS) of 2020 wherein a limited prayer has been made that the Sub Divisional Magistrate, Tehsil Tarabganj, District Gonda be directed to expeditiously decide the case bearing No. T201908300603097; under Section 116 of the U.P. Revenue Code, 2006 (Smt. Prabhawati Singh and Another Vs. Amar Bahadur Singh and other) preferably within a period of 3 months. In the aforesaid petition, Smt. Jasoda Singh (the petitioner in the instant petition) has been impleaded as opposite party no. 4. Thus the said petition has been connected with W.P. No. 22981 (MS) of 2019. Since the issue involved in present petition will impact the grant of relief in the other petitions, hence, both the petitions are being decided by this common judgment for the convenience the facts are being noticed from The petitioner assails the order dated 26.06.2019 passed by the SDM, Tahsil, Tarabganj, District Gonda whereby the Suit of the opposite party nos. 6 and 7 has been registered, notices were issued to the defendants of the suit and further as an interim measure, the parties have been directed not to change the nature of the property in question and also under challenge is the institution of the suit itself before the SDM under Section 116 of the U.P. Revenue Code, 2006.

3. Primarily, it is the entire proceedings which are under challenge, however, for the sake of convenience, the three main prayers sought by the petitioner in the W.P. No. 22981 (MS) of 2019 are reproduced for ready reference.

“(a) To issue a writ order or direction in the nature of Certiorari for quashing of the impugned order dated 26.06.2019 passed by the opposite party no. 2 and 3 on the application for interim relief filed along with application moved under Section116 of the Revenue Code contained as Annexure No. 1 to the writ petition.

(b) To issue a writ order or direction in the nature of mandamus commanding the opposite party no. 2 and 3 to forthwith cancel/terminate the pending proceeding initiated on the basis of application moved by the Opposite Party No. 6 and 7 under Section 116 of the Uttar Pradesh Revenue Code, 2006 on the ground that they had sold their right and title of their part of Gata No. 291 situated in Village Baghusra, pargana Mahadeva, Tehsil Tarabganj, District Gonda after executing sale deed in favour of the Nandini Committee of the Nandini Mahavidyalaya, run by the powerful politician through registered sale deed dated 02.07.2019.

(c) To issue a writ order or direction in the nature of Mandamus commanding the Opposite Party No. 2 to 5 to not restrain the petitioner under the garb of the order dated 26.06.2019 and allow the petitioner to complete his roof work of the constructed building.”

4. The proposition canvassed by Sri Hemant Mishra is two fold. Firstly, it is alleged that the suit under Section 116 of the U.P. Revenue Code, 2006 was not maintainable at the behest of the opposite party nos. 6 and 7 in light of the averment contained in the suit itself and more particularly in paragraph 4. The paragraph 4 of the plaint in suit (a copy of which has been brought on record as Annexure No. 2) is reproduced as under:-

^^/kkjk 4&;g dh oknhx.k ,oa izfroknhx.k vius va'k ds eqrkfcd og Hkh ckaV ds vuqlkj dkfct nkf[ky pys vk jgs gSA^

5. It has been submitted that once the opposite party nos. 5 and 6 in the suit itself stated that on the basis of an oral settlement/partition, parties were in possession of their respective shares, hence, there was no question of the suit being maintainable for partition.

6. The other ground urged by Sri Mishra has further two limbs (i) the opposite party no