Hon’ble Alok Singh, J. (Oral)

MCC No. 554 of 2013

Recall Application (MCC No. 554 of 2013) is filed seeking recall of the judgment dated 07.08.2013, passed by the Hon’ble B.S. Verma, J. as His Lordship then was, allowing WPMS No. 1209 of 2002, Bal krishan Vs. Chief Revenue Commissioner and others.

2. The main grievance of Mr. Bhupendra Singh, learned counsel appearing for the respondent nos. 3 and 4 in the writ petition/ applicants herein that although respondent nos. 3 & 4 have engaged Sri Jagdish Prasad and Sri Gopal Krishan, Advocates to represent them, however, none has appeared to argue the matter on 07.08.2013. Consequently, Writ Petition (M/S) No. 1209 of 2002 was decided ex parte against them, vide judgment and order dated 07.08.2013. Consequently, judgment and Order dated 07.08.2013 be recalled and writ petition be heard at its own merit de novo.

3. Mr. S.K. Mandal, learned counsel for petitioner, Mr. Bhupendra Singh, learned counsel appearing for the applicants/respondent nos. 3 & 4, Mr. Gajendra Tripathi, learned Brief Holder, appearing for respondent No. 1 and 2, and Mr. A.K. Joshi, Advocate for respondent no.5 fairly submitted that present applicant may be treated as Review application and may be heard and disposed of as such. Further, contended that if in the opinion of this Court judgment dated 07.08.2013 is found to be perverse or liable to be reviewed it may be reviewed/recalled.

4. Brief facts of the present case, inter alia, are that the petitioner as well as respondent nos. 3 & 4, herein, have jointly filed Suit No. 22/15 of 1987-88 in the Court of Assistant Collector, 1st Class, Rudrapur, District Nainital against Om Prakash and Balraj Singh as well as the Gram Sabha- Govindpur to declare them joint bhumidhar in possession of land, in question. Suit so filed by the petitioner as well as respondent nos. 3 and 4 herein, was decreed by the Trial Court vide judgment and decree dated 18.04.1991 declaring the petitioner and respondent nos. 3 and 4, herein, as joint bhumidhars in possession of land in question; Appeal No. 150/98 of 1990-91 was preferred by Om Prakash and Balraj Singh, assailing the judgment and decree dated 18.04.1991, however, same was dismissed by the Divisional Commissioner vide judgment and decree dated 24.3.1993; judgment and decree dated 18.4.1991 passed by Assistant Collector as well as judgment passed by the First Appellate Court dated 24.3.1993 upholding the decree dated 18.4.1991 were never challenged before the higher Forum and were allowed to attain finality; Thus, present petitioner as well as respondent nos. 3 & 4 were recorded as co-bhumidhar in possession of the property in question in the revenue record; petitioner, herein, thereafter filed Suit No. 22/108 of 1991-92 under Section 176 of the UPZA & LR Act against the respondent nos. 3, 4 & 5, herein, for the partition claiming 1/3rd share in the property in question; suit was hotly contested by respondent no. 3 and 4, herein, stating that the plaintiff/present petitioner is not from their family and he was brought by their mother from Himachal Pradesh and entire sale consideration of the property in question was paid by their mother, however, out of love and affection, name of the petitioner was included in the sale documents as well as in the plaint of declaratory Suit No. 22/15 of 1987-88 with the understanding that he would be given 1/10th share in the property in question; suit filed by the plaintiff/petitioner was decreed vide judgment and decree dated 21.4.1995 declaring that the plaintiff/petitioner, herein, is having only 1/10th share in the property in question; feeling aggrieved, plaintiff/petitioner, herein, has preferred First Appeal No. 66/113 of 1994-95 before the Divisional Commissioner, which was allowed and case was remanded to the Trial Court for the decision afresh vide judgment dated 11.12.1995; suit was again decreed vide judgment and decree dated 21.3.1998, however, this time plaintiff/petition