IMPORTANT POINT
Restoration applications under CPC do not abate under Section 5(2) of the Consolidation Act, allowing for adjudication on merits.

JUDGMENT :

(Syed Qamar Hasan Rizvi, J.) :

Heard, Sri Awadesh Kumar Yadav, learned Counsel for the petitioners, Sri Anshul Nigam, learned Standing Counsel for the State-respondent Nos. 1 and 3 and Sri Amrendra Pratap Singh, learned Counsel for the respondent No. 2.

2. With the consent of the learned counsel for the parties, this Court proceeds to finally decide the present Writ Petition at the admission stage itself.

3. The relevant facts in brief, as narrated by the petitioners in the writ petition, are that the petitioners and respondent No. 2 belong to the same family and the dispute is in respect of a property that belonged to Late Shiv Gulam, who was the ancestor of the petitioners and the respondent No. 2.

4. The submission of the learned counsel appearing on behalf of the petitioners is that the father of the petitioners filed a partition suit bearing Suit No. 35 of 1970 (Ram Aasre and another v. Jhinnu) in the Court of learned Sub Divisional Officer, Bansi, District Basti (the then). The said Suit, on the basis of a compromise between the parties, was decided on 19.8.1970 and the decree was passed on 30.1.1971. The respondent No. 2-Rajendera alongwith two others namely Sri. Motilal and Smt. Jamuni filed an application dated 3.1.1987 under Order IX Rule 13 of the Civil Procedure Code, 1908 against the judgement and decree dated 19.8.1970 and 30.1.1971 respectively; before the learned Court of Sub Divisional Officer, Bansi. The parties to the said proceeding amicably settled their dispute and accordingly moved an application dated 1.11.1995 before the aforesaid Court, inter alia, praying that the said restoration application dated 3.1.1987, filed under Order IX Rule 13 of the Civil Procedure Code, 1908 be dismissed as withdrawn.

5. It has been asserted on behalf of the petitioners that the Village Auraiyya Manjhriya, Tappa Gosiyari, Paragana Manghar Paschim, Tehsil Mehdawal, District Sant Kabir Nagar; came under consolidation operation and Notification No. 1425/G 610/2012 under Section 4(2) of the Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Consolidation Act'), was issued on 3.5.2014.

6. Further, the respondent No. 2, namely, Rajendera after a period of about 19 years, again filed an application dated 30.1.2015 under Order IX Rule 13 read with Section 151 of the Civil Procedure Code, 1908 (herein after referred to as 'Restoration Application') before the learned Court of Sub Divisional Officer, Mehdawal, Sant Kabir Nagar, inter alia, praying for setting aside of the aforesaid judgement and decree dated 19.8.1970/30.1.1971 passed in the partition Suit No. 35 of 1970 and to restore the same to its original number to be decided on merit after entertaining the objections raised by him.

7. On the aforesaid Restoration Application, the learned Sub Divisional Officer Mehdawal, vide order dated 11.2.2015 directed the Peshkar to place the same alongwith the records by fixing a date and issuing notices to the opposite parties.

8. Against the aforesaid Restoration Application, petitioners filed detailed objection dated 15.3.2018 with the prayer to dismiss the same and to maintain the judgement and decree dated 19.8.1970/30.1.1971 passed in the partition Suit No. 35 of 1970.

9. It has been further submitted on behalf of the petitioners that the respondent No. 2 also filed an objection under Section 9A (2) of the Consolidation Act before the Consolidation Officer, Sant Kabir Nagar on 20.5.2016 in respect of the same dispute and on receipt of the notices the petitioners appeared on 8.11.2016 and filed a counter reply to the said objection.

10. The learned Sub Divisional Officer, Mehdawal after hearing the parties; vide order dated 25.4.2018, directed to consign the aforesaid Restoration proceeding to records as having been abated, on the ground that since the Village Auraiyya (Manjhriya), Tappa Gosiyari, Paragana Maghar Paschim, Tehsil Mehdawal, District Sant Kabir Nagar, has been declared under consolidation op